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Lucas v. Moore

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


July 28, 2010

DANIEL LUCAS, PETITIONER,
v.
STEVE MOORE, ET AL., RESPONDENT.

ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 26, 2010, judgment was entered in this court denying the petition. On June 2, 2010, pursuant to the "mailbox rule," petitioner filed a notice of appeal. On June 29, 2010, petitioner filed a motion to appoint counsel, a motion for certificate of appealability, and a motion to proceed in forma pauperis on 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).

The timely filing of a notice of appeal is a jurisdictional requirement. Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984). Here, 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.

The United States Court of Appeals for the Ninth Circuit has held that the issuance of a certificate of probable cause cannot vest the court of appeals with jurisdiction if jurisdiction is not proper in that court. Hayward v. Britt, 572 F.2d 1324, 1325 (9th Cir. 1978). The rationale of Hayward applies with equal force to a certificate of appealability. For these reasons, the court declines to issue a certificate of appealability.

Accordingly, IT IS ORDERED that:

1. Petitioner's June 29, 2010 motion for certificate of appealability is denied;

2. Petitioner's June 29, 2010 motion to proceed in forma pauperis is denied; and

3. Petitioner's June 29, 2010 motion for the appointment of counsel on appeal is denied.

20100728

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