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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 system on March 9, 2015, and therefore, the objections were deemed filed as of March 9, 2015.[1] (ECF No. 33).

Federal Rule of Civil Procedure 59(e) provides that "[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment." Judgment in this action was entered on January 29, 2015. (ECF No. 30). Therefore, as the Court previously determined in its March 27, 2015 order, Petitioner did not timely file a motion for reconsideration pursuant to Rule 59(e), because his motion for reconsideration that was deemed filed March 9, 2015, was not filed within 28 days after the entry of the judgment. (ECF No. 33). The Court could not extend the time to file a Rule 59(e) motion because Federal Rule of Civil Procedure 6(b)(2) provides that "[a] court must not extend the time to act under Rules... 59(b), (d), and (e), and 60(b)." Although the Court determined that Petitioner's objections should be construed as a motion for relief under Federal Rule of Civil Procedure 60, Petitioner is not entitled to the exception in Federal Rule of Appellate Procedure 4(a)(4) when calculating the time to file a notice of appeal because he did not file the Rule 60 motion within 28 days after the entry of the judgment.

Therefore, 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(a)(1)(A). However, Petitioner did not mail his notice of appeal until April 16, 2015, which was well beyond the 30 day requirement for filing a notice of appeal.

B. Motion for Extension of Time Pursuant to Rule 4(a)(5) of the Federal Rules of Appellate Procedure

Petitioner requests an extension of time to file his notice of appeal. Federal Rule of Appellate Procedure 4(a)(5) provides that:

(A) The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.
(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.

Petitioner argues that he should receive an extension of time to file his notice of appeal because the Magistrate Judge did not have proper jurisdiction to enter the order denying the petition and he was confused by the findings and recommendation that was entered in error in this case on December 8, 2014.

As the Court stated above, Petitioner had to file his notice of appeal by depositing it in the institution's mail system within 30 days after entry of judgment. See Federal Rule of Appellate Procedure 4(a)(1)(A). As Judgment was entered on January 29, 2015, Petitioner had to mail his notice of appeal by March 2, 2015. Therefore, Petitioner had to file his motion to extend the time to file a notice of appeal within thirty days of March 2, 2015, which was April 1, 2015. However, Petitioner did not mail his notice of appeal and motion to extend the time to file the notice of appeal until April 16, 2015. (ECF No. 34). Therefore, he did not comply with the requirement of Federal Rule of Appellate Procedure 4(a)(5)(A)(i), and his motion to extend the time to file a notice of appeal must be denied.[2]

C. Motion to Reopen the Time to File an Appeal Pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure

Petitioner does not specifically argue that he is entitled to reopen the time to file an appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6). However, to the extent that the instant motion should be construed as a motion to reopen the time to file an appeal, the Court will address whether Petitioner is entitled to reopen the time to file an appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6), which provides that:

The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:
(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;
(B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.

Petitioner has not stated that he received the judgment or order to be appealed from more than 21 days after entry. Federal Rule of Appellate Procedure 4(a)(6)(A) is clear that the time for filing an appeal may only be reopened if Petitioner did not receive notice of the entry of the judgment or order sought to be appealed within 21 days after entry. Therefore, based upon the instant motion, Petitioner is not entitled to reopen the time to file an appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6).

III.

ORDER

Accordingly, IT IS HEREBY ORDERED that Petitioner's motion to extend the time to file the notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(5) is DENIED. To the extent that Petitioner's motion is construed as a motion to reopen the time to file an appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6), it is DENIED.

IT IS SO ORDERED.


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