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Dye v. Clark

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 28, 2010

THOMAS P. DYE, PETITIONER,
v.
KEN CLARK, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Barbara L. Major United States Magistrate Judge

ORDER: (1) DENYING MOTION FOR CERTIFICATE OF APPEALABILITY [ECF No. 19]; AND (2) GRANTING MOTION FOR NOTICE OF APPEAL [ECF No. 20] EXTENSION OF TIME TO FILE

On June 29, 2010, this Court issued an Order*fn1 Denying Petitioner's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and Motion for an Evidentiary Hearing. ECF No. 15. The Court entered judgment to that effect on June 30, 2010. ECF No. 16. On September 7, 2010, Petitioner filed a Notice of Appeal and a Declaration in Support of his Notice of Appeal (ECF No. 18), which the Court construed as a Motion/Request for a Certificate of Appealability No. 19) and a Motion/Request for an Extension of Time to File a Notice of Appeal (ECF No. 20). For the reasons set forth below, the Court GRANTS Petitioner's Motion to File a Notice of Appeal and DENIES Petitioner's Motion for Certificate of Appealability.

Notice of Appeal

An appeal from the denial of a habeas petition is considered a "civil" matter and thus subject to the time limitations set forth in Rule 4 of the Federal Rules of Appellate Procedure and a timely notice of appeal is mandatory and jurisdictional. Browder v. Dir. Dep't of Corr., 434 U.S. 257, 264 (1978); Malone v. Aventi, 850 F.2d 569, 571 (9th Cir. 1988). Rule 4(a)(1)(A) requires a notice of appeal be filed within 30 days after the district court enters judgment where, as the United States is not a party. Fed. R. App. P. 4(a)(1)(A). The district court may extend period of time to file a notice of appeal if "a party so moves no later than 30 days after the prescribed by [] Rule 4(a) expires" and "that party shows excusable neglect or good cause."

R. App. P. 4(a)(5)(A)(i)-(ii). However, the district court also may "reopen the time to file appeal" if: (1) the moving party did not receive notice of the entry of the judgment within 21 after entry; (2) the motion is filed within 180 days after the judgment is entered or within days after the moving party receives notice of the entry, whichever is earlier; and (3) no party would be prejudiced. Fed. R. App. P. 4(a)(6).

Here, Petitioner did not file his declaration and Notice of Appeal until September 7, 2010. No. 18-1 at 2; Fed. R. App. P. 4(c)(1) (timeliness of notice determined by date inmate deposits it in institution's internal mail system). Petitioner's motion exceeds the time limits imposed by Rule 4(a)(1) and Rule 4(a)(5), so the Court must evaluate it utilizing the requirements set forth in Rule 4(a)(6). In his declaration, Petitioner avers that he did not receive a copy of the decision or judgment issued by this Court and explains that he was moved from prison to another in July 2010. ECF No. 18-1. Based upon this declaration, the Court finds Petitioner did not receive notice of the entry of judgment within 21 days after entry. Petitioner filed his motion on September 7, 2010, which is within 180 days after the entry of udgment on June 30, 2010. ECF No. 16. His declaration also establishes that he filed the motion within 14 days after receiving notice of the judgment. ECF No. 18-1 (received letter from containing docket entries on September 2, 2010 and filed motion on September 7, 2010). Finally, the Court finds that neither party will be prejudiced by reopening the time to file a notice appeal. Accordingly, the Court grants Petitioner's request to reopen the time to file a notice of appeal pursuant to Rule 4(a)(6) and accepts the filed Notice of Appeal as timely.

Certificate of Appealability

Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), a state prisoner may not appeal the denial of a habeas petition unless he obtains a certificate of appealability (COA) from a circuit justice or judge.*fn2 See 28 U.S.C. § 2253(c)(1)(A); see also United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997) (holding that district courts retain authority to issue a COA under the AEDPA and stating that "[i]f no express request is made for a certificate of appealability, the notice of appeal shall be deemed to constitute a request for a certificate."). In deciding whether to grant a COA, a court must either indicate the specific issues supporting a certificate or state the reasons why a certificate is not warranted. See 28 U.S.C. § 2253(c)(3); Asrar, 116 F.3d at 1270.

A court may issue a COA only if the applicant has made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). If a habeas petition has been denied on the merits, the Supreme Court has stated that "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

This Court denied each of Petitioner's constitutional claims on the merits. See ECF No. Yet, in his Motion for a Certificate of Appealability, Petitioner simply requests that his "notice of appeal be honored, and that a certificate of appealability be granted as to each of the three issues raised in [his] habeas petition." ECF No. 18 at 1. As such, Petitioner has not made a "substantial showing of the denial of a constitutional right" (28 U.S.C. § 2253(c)(2)), nor has he demonstrated that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong" (Slack, 529 U.S. at 484). Moreover, the Court has independently reviewed its order and finds that reasonable jurists would not find the constitutional determinations to be debatable or wrong. Rule 11(a), 28 U.S.C. foll. § 2254. Accordingly, the Court declines to issue a certificate of appealability.

CONCLUSION

Petitioner did not file a timely notice of appeal. However, Petitioner satisfied the elements of Rule 4(a)(6) of the Federal Rules of Appellate Procedure, and the Court therefore GRANTS his motion for an extension of time to file his notice of appeal and orders that the notice be filed and accepted as timely. However, Petitioner has not made a substantial showing of a constitutional violation, nor has he demonstrated that this Court's constitutional determinations were debatable or wrong. And, this Court's independent review of its constitutional determinations confirms that reasonable jurists would not find them debatable. Accordingly, the Court declines to issue a certificate of appealability and DENIES Petitioner's Motion for Certificate of Appealability.

IT IS SO ORDERED.


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