ORDER DENYING PLAINTIFF'S MOTIONS FOR PRELIMINARY INJUNCTION (Docket Nos. 13, 14)
EDWARD M. CHEN, District Judge.
Petitioner has filed an "urgent motion for preliminary injunction to prevent irreparable harm; request release of prisoner pending appeal, " and an "emergency motion for preliminary injunction to prevent irreparable harm; request release of petitioner." Docket # 13, # 14. Although he is not entitled to the relief he requests, Petitioner's motions suggest that he may be unaware that the Court already has denied his petition. The Court will deny the motions for a preliminary injunction and will provide information about some special appeal concerns in this action.
A. Procedural History
Petitioner challenged the execution of his sentence in this pro se action for a writ of habeas corpus under 28 U.S.C. § 2254. He claimed in his petition that his constitutional right to be free of ex post facto laws was violated when prison officials applied to him a statute that had been amended as of January 25, 2010. The result of the application of the amended statute to him was to decrease the time credits he would earn and therefore extend the time he must spend in prison. The statutory amendment caused his release date of August 9, 2013 to be extended to March 20, 2014.
On April 16, 2013, the Court issued an Order Denying Petition For Writ of Habeas Corpus and entered Judgment.
On May 1, 2013, an envelope that apparently had contained the Order and Judgment was returned to the Court and docketed in this case as: "Mail sent to Carlos Garcia returned as undeliverable." Docket # 12. The envelope that was sent back to the Court was marked, "return to sender - vacant - unable to forward - return to sender, " although it is unclear whether the marking was made by prison officials or postal officials. Docket # 12.
On June 14, 2013, Petitioner filed his motion for a preliminary injunction; Petitioner subsequently filed another motion for preliminary injunction on July 1, 2013. In his motion, he requested that the Court order the CDCR to release him on August 9, 2013, his originally scheduled release date, "pending appeal." Docket # 13, p. 2. He contended that releasing him on his originally scheduled release date would allow him to avoid the irreparable harm of remaining in custody on an extended sentence that (he contended) violated the Ex Post Facto Clause. Docket # 13, p. 2. Petitioner's motion elsewhere indicated that he was unaware that this Court had already denied his petition, as he urged that, "in the event that this court may deny the petition, it is the intention of this petitioner to bring this matter before the 9th Circuit Court of Appeals." Id.
Petitioner's motions for preliminary injunction are DENIED. (Docket # 13, # 14.) Because the Court has entered judgment against him, it can be said with certainty that Petitioner cannot show any likelihood of success on the merits in this action. See Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008) ("A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.")
Petitioner's motions for preliminary injunction suggested that he was unaware that his petition had been denied and that the normal time to appeal has passed. If Petitioner wants to appeal, he must immediately file a motion to reopen the time to appeal. His motion to reopen the time to appeal can be a very short motion, but must state when he first learned the Court had denied his petition for writ of habeas corpus and entered judgment in his action. Petitioner also should file a notice of appeal at the time he files his motion to reopen the time to appeal because, even if the Court grants his motion to reopen the time to appeal, he will only have 14 days to file a notice of appeal. See Fed. R. App. P. 3(c)(1) (notice of appeal must specify the party taking the appeal, designate the judgment or order at issue, and name the court to which the appeal is taken).
The Clerk shall mail to Petitioner a copy of Docket # 10 ...