Opinion
Case No. 17-cv-02159-YGR (PR)
09-24-2018
CARLOS A. ESPINOZA, Petitioner, v. W. L. MONTGOMERY, Warden, Respondent.
ORDER DIRECTING FILING OF NOTICE OF APPEAL; AND DENYING AS MOOT PETITIONER'S REQUEST FOR EXTENSION OF TIME TO FILE CERTIFICATE OF APPEALABILITY
Petitioner, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 24, 2018, the Court entered an order and judgment denying the petition on the merits. Dkts. 22, 23. Thereafter, on August 23, 2018, Petitioner filed a document entitled, "Application for Extension of Time to File Petitioner[']s COA," in which he requests an extension of time to file a certificate of appealability ("COA").
Petitioner's motion has a signature date of August 23, 2018 and was stamped "filed" at the Court on August 27, 2018. As a pro se prisoner, Petitioner receives the benefit of the prisoner mailbox rule, which deems most documents filed when the prisoner gives them to prison officials to mail to the court. See Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). The Court will assume he gave the motion to prison officials for mailing on the date he signed it, i.e., August 23, 2018, and deem the motion filed as of that date.
As a preliminary matter, Petitioner seeks additional time to file a COA, but has not filed a separate notice of appeal. However, any document that clearly evinces an intent to appeal and is otherwise sufficient under Federal Rule of Appellate Procedure 3(c) may be construed as the functional equivalent of a notice of appeal. See Smith v. Barry, 502 U.S. 244, 245 (1992). Petitioner's aforementioned motion evinces an intent to appeal and is otherwise sufficient to be considered a notice of appeal. See Smith, 502 U.S. at 248; Fed. R. App. P. 3(c); cf. Tinsley v. Borg, 895 F.2d 520, 523 (9th Cir. 1990) (treating timely pro se motion for a certificate of probable cause as a timely notice of appeal), cert. denied, 498 U.S. 1091 (1991). Therefore, the Court construes Petitioner's pending motion as a notice of appeal. The Court further notes that an appeal of right may be taken only by filing a valid notice of appeal in the district court within the time allowed by Fed. R. App. P. ("FRAP") 4. See FRAP 3(a)(1). The notice of appeal must be filed within thirty days after judgment is entered. See FRAP 4(a)(1). Under these rules, a notice of appeal be filed in this action within thirty days of July 24, 2018 (the day judgment was entered), that is, on or before August 23, 2018.
Here, Petitioner's motion was signed on August 23, 2018, which is exactly on the deadline and is therefore timely under FRAP 4(a)(1). Therefore, the Clerk of the Court is directed to file Docket No. 24 as a notice of appeal, with a filing date of August 23, 2018.
Finally, as mentioned above, Petitioner requests an extension to file a COA. Federal Rule of Civil Procedure 6(b) allows the district court to extend the time for taking any action that is required to be done within a specified time under the Federal Rules or a court order. There is no time limit for requesting a COA. See 28 U.S.C. § 2253(c). In any event, in its July 24, 2018 Order, the Court declined to issue a COA as to Petitioner's claims. Dkt. 22 at 30. Therefore, there is no need for Petitioner to file a COA in this Court, a fact which renders moot his request for an extension of time to do so. Accordingly, Petitioner's request for an extension of time to file a COA is DENIED as moot.
CONCLUSION
For the reasons outlined above, the Court orders as follows:
1. Petitioner's "Application for Extension of Time to File Petitioner[']s COA" is construed as a notice of appeal. The Clerk is directed to file Docket No. 24 as a notice of appeal, with a filing date of August 23, 2018.
2. Petitioner's request for an extension of time to file a COA is DENIED as moot. Dkt. 24.
3. This Order terminates Docket No. 24.
IT IS SO ORDERED. Dated: September 24, 2018
/s/_________
YVONNE GONZALEZ ROGERS
United States District Judge