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In Palmer v. Barclay, supra, it is said that the "trial court has power in the exercise of its discretion, to allow an insufficient affidavit of merits which has been filed in due time upon a motion to change the place of trial of an action to be amended after the time for filing the original affidavit has expired; and the filing of the amended affidavit relates back to the time of the filing of the original affidavit."
Summary of this case from O'Hanion v. Great Northern Ry. Co.Opinion
No. CIV S-01-1596 LKK GGH P.
March 28, 2006
ORDER
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 11, 2006, judgment was entered in this court denying the petition. On March 8, 2006, petitioner filed a notice of appeal. Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b).
Federal Rule of Appellate Procedure 22(b) requires the district court judge who rendered a judgment denying such petition to "either issue a certificate of probable cause or state the reasons why such a certificate should not issue."
The timely filing of a notice of appeal is a jurisdictional requirement. Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984). Here, the time limit for filing a notice of appeal following entry of judgment is thirty days. See Fed.R.App.P. 4(a). Petitioner's notice of appeal in this action was filed more than thirty days after entry of judgment.
The United States Court of Appeals for the Ninth Circuit has held that the issuance of a certificate of probable cause cannot vest the court of appeals with jurisdiction if jurisdiction is not proper in that court. Hayward v. Britt, 572 F.2d 1324, 1325 (9th Cir. 1978). The rationale of Hayward applies with equal force to a certificate of appealability. For these reasons, the court declines to issue a certificate of appealability.
IT IS SO ORDERED.