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Garcia v. Busby

United States District Court, C.D. California, Western Division

February 10, 2015

ROBERT JOHN GARCIA, Petitioner,
v.
TIMOTHY BUSBY (Warden) et al., Respondents.

OPINION AND ORDER Denying Petitioner's Post-Judgment "Motion for a Clerical Error in Accordance with the FRAP, Rule 3(d)(1)(2); and With Emphasis in the FRAP, Rule 4(b)"; Denying a Certificate of Appealability

VALERIE BAKER FAIRBANK, Senior District Judge.

Proceeding pro se, California state prisoner Robert John Garcia ("petitioner") filed this petition for a writ of habeas corpus ("petition") pursuant to 28 U.S.C. § 2254. By Opinion and Order issued June 17, 2014 (Case Management/Electronic Case Filing System Document ("Doc") 5), this Court (1) determined that the petition was a second-or-successive petition for purposes of AEDPA, (2) found that petitioner had not obtained advance leave from the U.S. Court of Appeals for the Ninth Circuit ("Circuit") to file the petition here, (3) "referred" the matter to the Circuit as required by that court's Rule 22-3(a), (4) dismissed the action without prejudice for lack of subject-matter jurisdiction, and (5) denied a certificate of appealability ("COA"). On that same date, the Court entered judgment (Doc 6).

On October 16, 2014 - about four months after the entry of judgment - petitioner filed a request for COA addressed to the undersigned District Judge (Doc 7); because this Court had already expressly denied a COA in its June 17, 2014 Order (Doc 5), petitioner's request for a COA was treated as a notice of appeal with the Circuit (Doc 7). The Circuit issued a notification (Doc 8) assigning appeal number 14-56714. On November 26, 2014, the Circuit issued an order stating, "The request for a certificate of appealability is denied because the notice of appeal was not timely filed." Doc 9 (citing 28 U.S.C. §§ 2107 and 2253(c)(2)).

On December 23, 2014 - over five months after entry of the order dismissing the habeas petition - the Court received a letter from petitioner stating, "On December 8, 2014, I had forwarded to the Court my Motion for the Correction of a Clerical Error for filing and as of yet, I have not received a mailing receipt." Doc 10 at 1. Petitioner concluded, "I would highly appreciate that you let me know if the Court has received my motion or will I have to re-submit my motion." Id. On December 29, 2014, the Magistrate Judge issued an Order (Doc 11) stating, "No such motion has been received by this Court. The court clerk is directed to send petitioner a copy of the docket in this matter along with this order."

Petitioner Garcia has now submitted a document entitled "Motion for a Clerical Error in Accordance with the FRAP, Rule 3(d)(1)(2); and With Emphasis in the FRAP, Rule 4(b)." On January 26, 2015, the Court issued a Notice of Document Discrepancies (Form CV-104A) noting that the case was closed on June 17, 2014 and that this Court denied a COA on that same date, but permitting petitioner's motion to be filed. The Court will now deny the motion for lack of merit.

Petitioner begins his motion by accurately noting that "on November 26, 2014, the United States Court of Appeals for the Ninth Circuit in C.A. Case No. 14-56714; contend[ed] that it did not receive the Notice of Appeal on time." Doc 14 at 2 (citing Exhibit ("Ex") A). Petitioner then states as follows:

1) On June 17, 2014[, ] the United States District Court for the Central District of California, and in case no. LA CV 14-04224-VBF-PLA issued its order in accordance to [sic] the United States Court of Appeals for the Ninth Circuit, Rule 22-3(a); and for a (COA) Certificate of Appealability to Appeal [sic].
2) On June 17, 2014, the Court directed the Court Clerk to forward the Notice of Appeal to the United States Court of Appeals for the Ninth Circuit.

Doc 14 at 3. His characterization of this Court's June 17, 2014 Order (Doc 5) is not entirely accurate.

The June 17, 2014 Order (Doc 5) "referred" the case to the U.S. Court of Appeals as required by Ninth Circuit Rule 22-3(a), dismissed this section 2254 action without prejudice for lack of jurisdiction, and denied a certificate of appealability. The June 17, 2014 Order (Doc 5) did not "direct the Court Clerk to forward the Notice of Appeal to... the Ninth Circuit", because there was not yet any notice of appeal (or any document which could be construed as a notice of appeal) on the docket of this case. Petitioner did not file anything in this case for four months after the issuance of the June 17, 2014 order.

Petitioner next filed a COA request, Doc 7, which he hand-dated October 14, 2014 and the Clerk's Office filed on October 16, 2014. Petitioner's October 16, 2014 COA request was addressed to the undersigned District Judge, but the Clerk's Office, noticing that this Judge had already expressly denied a COA in the June 17, 2014 Order, appropriately treated the "COA request" as a notice of appeal to be directed to the U.S. Court of Appeals. Accord Hicks v. Berghuis, 2014 WL 4594862, *2 (E.D. Mich. Sept. 14, 2014) ("[T]he content of the Motion for Certificate of Appealability makes it objectively clear that Hicks intended to appeal the Court's dismissal of his habeas corpus petition. * * * Accordingly, the Court construes petitioner's motion as a... notice of appeal and directs the Clerk of Court to follow the service procedures set forth in Fed. R. App. P. 3(d).").

PETITIONER FAILS TO EXPLAIN HOW THE APPELLATE RULES WARRANT RELIEF

Petitioner opens his motion by stating that he seeks to correct "a clerical error in accordance [with] the time limit's [sic] in the FRAP, 3(d)(1)(2)[, ] with emphasis [o]n the FRAP, Rule 4(b)." Doc 14 at 2. Federal Rule of Appellate Procedure 3(d), Serving the Notice of Appeal, provides in its entirety as follows:

(1) The district clerk must service notice of the filing of a notice of appeal by mailing a copy to each party's counsel of record - excluding the appellant's - or, if a party is proceeding pro se, to the party's last known address. [omitting a sentence addressing appeals by a defendant in a criminal case] The clerk must promptly send a copy of the notice of appeal and of the docket entries - and any later docket entries - to the clerk of the court of ...

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