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Moore v. Hense

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 27, 2009

LARRY B. MOORE, PETITIONER,
v.
LYDIA C. HENSE, RESPONDENT.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER GRANTING PETITIONER'S MOTION FOR EXTENSION OF TIME TO FILE APPEAL AND DIRECTING CLERK OF COURT TO SERVE COPY OF ORDER ON UNITED STATES COURT OF APPEALS FOR NINTH CIRCUIT (Case No. 08-16512)

[Doc. 17]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On May 7, 2008, the instant petition for writ of habeas corpus was dismissed and the action was terminated. (Court Docs. 14, 15.) On June 6, 2008, Petitioner filed a motion to vacate the judgment, which was denied on June 26, 2008. (Court Docs. 17, 19.) In the interim, Petitioner filed a notice of appeal on June 24, 2008. (Court Doc. 18.)

On February 25, 2009, the United States Court of Appeal for the Ninth Circuit, remanded the action to this court "for the limited purpose of allowing to rule on appellant's June 6, 2008 request for an extension of time to appeal." The court noted that Petitioner's June 6, 2008 motion to vacate the judgment "also contained language requesting an extension of time to appeal" which was not addressed.

Pursuant to Rule 4 of the Federal Rules of Appellate Procedure, a party must file a Notice of Appeal within thirty (30) days after the judgment or order appealed from is entered.

Fed.R.App.P. 4(a). The district court may extend the time for filing a notice of appeal if: (i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and (ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause. Fed.R.App.P 4(a)(5)(I), (ii).

Petitioner's notice of appeal was due on or before June 6, 2008; however, good cause having been presented to the Court and good cause appearing therefor, Petitioner's request for an extension of time is GRANTED nunc pro tunc to June 24, 2008, the date the notice of appeal was filed. See Rule 4(a)(5)(A)(i) of the Federal Rules of Appellate Procedure.

The Clerk of Court is directed to electronically serve a copy of this decision on the Chambers of Chief Judge Kozinski and Circuit Judge Hawkins , case no. 08-16512.

IT IS SO ORDERED.

20090227

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