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Edsall v. Marshall

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


July 20, 2010

JOHN A.H. EDSALL, SR., PETITIONER,
v.
J. MARSHALL, WARDEN, ET AL., RESPONDENTS.

ORDER

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is proceeding before a United States Magistrate Judge with the consent of the parties pursuant to 28 U.S.C. § 636(c).

On June 24, 2010, petitioner filed a document styled "Motion & Supporting Exhibits Requesting Review and a Finding of Excusable Neglect." By that motion, petitioner seeks review and reconsideration of this court's February 2, 2010 order denying petitioner's August 21, 2009 second motion for relief from judgment. In the alternative, petitioner seeks leave to file a late notice of appeal and request for a certification of appealability.

This action was dismissed on January 29, 2009 as barred by the statute of limitations. Judgment was entered on the same day. On February 24, 2009, petitioner filed a motion for relief from judgment. That motion was denied by order filed July 29, 2009. On August 21, 2009, petitioner filed a second motion for relief from judgment. As noted above, that motion was denied on February 2, 2010. In the motion before the court, petitioner claims that he did not receive the court's February 2, 2010 order until May 27, 2010.

After review of the motion at bar and the record in this action, plaintiff's motion for relief from this court's February 2, 2010 order will be denied. Moreover, this court may only extend petitioner's time to file a notice of appeal in accordance with the provisions of Fed. R. App. 4(a)(5). In order to permit consideration of a request for extension of time under that rule, the request must be filed not later than sixty days after the order to be appealed from is entered. See Fed. R. App. P. 4(a)(1(A), (a)(5). Plaintiff's motion was filed more than sixty days after the court's February 2, 2010 order was entered. Accordingly, plaintiff's request to extend the time for filing a notice of appeal will also be denied.

In accordance with the above, IT IS HEREBY ORDERED that plaintiff's June 24, 2010 motion is denied.

20100720

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