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Miller v. High Desert State Prison

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


May 18, 2009

ERNEST MILLER, PLAINTIFF,
v.
HIGH DESERT STATE PRISON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Final judgment was entered on July 24, 2007 (see Doc. 21), and plaintiff's motion for relief from judgment was denied on August 30, 2007 (see Doc. 25). Currently pending before the court are plaintiff's requests for "relief from default" and permission to file a late notice of appeal (Docs. 26 and 27).

Under Federal Rule of Appellate Procedure 4(a)(5), the district court may extend the time to file a notice of appeal when the request is filed within 30 days after expiration of the time to file a notice of appeal. Here, judgment was entered on July 24, 2007. Plaintiff's timely motion for relief from judgment was denied on August 30, 2007. Therefore, the time to file a notice of appeal expired 30 days later on September 29, 2007. See Fed. R. App. P. 4(a)(4)(A). Because the instant requests for leave to file a late appeal were not filed until after this date, this court cannot extend the time to file a notice of appeal. See Fed. R. App. P. 4(a)(5). Plaintiff's requests (Docs. 26 and 27) are denied.

IT IS SO ORDERED.

20090518

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