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Easter v. Foulk

United States District Court, E.D. California

June 9, 2015

BRIAN EASTER, Petitioner,
v.
FRED FOULK, Respondent.

ORDER DENYING MOTION FOR EXTENSION OF TIME TO FILE APPEAL (ECF No. 34)

STANLEY A. BOONE, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

I.

BACKGROUND

On May 27, 2014, Petitioner declined to consent to Magistrate Judge jurisdiction, and the case was assigned to District Judge Lawrence J. O'Neill and Magistrate Judge Stanley A. Boone. (ECF No. 7). However, when the Court issued another order regarding consent in connection with directions to Respondent to respond to the petition, Petitioner returned a signed "Order Re Consent or Request for Reassignment" on July 31, 2014, in which he consented to Magistrate Judge jurisdiction. (ECF No. 16). Respondent consented to Magistrate Judge jurisdiction on July 28, 2014. (ECF No. 15). Thus, as both parties had consented to the jurisdiction of a United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment. On October 8, 2014, Judge O'Neill reassigned the case to this Court for all purposes within the meaning of 28 U.S.C. § 636(c) and to conduct any and all further proceedings in the case. (ECF No. 23). On August 28, 2014, Respondent filed his answer to the petition. (ECF No. 19). On December 29, 2014, Petitioner filed his traverse. (ECF No. 28). On January 29, 2015, the undersigned denied the petition and declined to issue a certificate of appealability, and judgment was entered. (ECF Nos. 29 & 30).

On March 16, 2015, Petitioner filed a document entitled, "Objections to Magistrate's Order Denying Petition for Writ of Habeas Corpus." (ECF No. 31). On the same date, Petitioner also filed a motion for extension of time to file objections. (ECF No. 32). On March 27, 2015, the Court construed Petitioner's objections as a motion for reconsideration pursuant to Rule 60(b) of the Federal Rules of Civil Procedure and denied the motion for reconsideration. (ECF No. 33). On April 20, 2015, Petitioner filed a motion to extend the time to appeal and a late notice of appeal. (ECF No. 34).

II.

DISCUSSION

A. Time for Filing a Notice of Appeal

Petitioner did not file his notice of appeal within the time prescribed by Federal Rule of Appellate Procedure 4(a)(1)(A), which provides that:

In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.
The present case is a civil action and none of the exceptions in Federal Rule of Appellate

Procedure 4(a)(1)(A) apply except for 4(c), so Petitioner had to file his notice of appeal by depositing it in the institution's internal mail system within 30 days after entry of judgment. See Federal Rule of Appellate Procedure 4(c) ("If an inmate confined in an institution files notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution's internal mail system on or before the last day for filing."). Federal Rule of Appellate Procedure 4(a)(1)(B) does not apply to the instant case because the Respondent in this case is a state official and not the United States, a United States employee or official, or a United States agency. Federal Rule of Appellate Procedure 4(a)(4) does not apply here because Petitioner did not timely file one of the motions listed. Federal Rule of Appellate Procedure 4(a)(4) states that "the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion" of the motions listed in that Rule which include a motion to alter or amend the judgment under Rule 59 and a motion for relief under Rule 60 if the motion is filed no later than 28 days after entry of the judgment.

In the March 27, 2015 order denying Petitioner's motion for reconsideration, the Court had construed Petitioner's objections as a motion for reconsideration pursuant to Rule 60 of the Federal Rules of Civil Procedure. (ECF No. 33). The Court determined that Petitioner had placed both the objections (ECF No. 31) and the motion for extension of time to file objections (ECF No. 32) in the prison mail ...


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