IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 6, 2009
MARCO ALEXANDER GOMEZ, PETITIONER,
D.L. RUNNELS, ET AL., RESPONDENTS.
The opinion of the court was delivered by: John A. Mendez United States District Judge
On August 18, 2008, this court denied petitioner's petition for writ of habeas corpus and judgment was entered. On June 9, 2009, petitioner filed a "petition for plain error review" addressed to the Ninth Circuit Court of Appeals. The court construes this petition as a notice of appeal.
Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b).
The timely filing of a notice of appeal is a jurisdictional requirement. See Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1985). The time limit for filing a notice of appeal following entry of judgment is thirty days. See Fed. R. App. P. 4(a). Petitioner's notice of appeal in this action was filed more than thirty days after entry of judgment. It is, therefore, untimely and cannot provide the appellate court with jurisdiction. The issuance of a certificate of appealability cannot vest the court of appeals with jurisdiction if jurisdiction is not proper in that court. Cf. Hayward v. Britt, 575 F.2d 1324, 1325 (9th Cir. 1978)(addressing issuance of a certificate of probable cause). Because petitioner's notice of appeal is untimely, the court declines to issue a certificate of appealability.
Accordingly, IT IS HEREBY ORDERED that petitioner's request for a certificate of appealability is denied.
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