Hernandez v. Ochoa

Full title: DAVID HERNANDEZ, Petitioner, v. J. T. OCHOA, Warden, Respondent.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Jul 18, 2012

Case No.: 1:10-cv-01863-JLT (E.D. Cal. Jul. 18, 2012)

Opinion

Case No.: 1:10-cv-01863-JLT

07-18-2012

DAVID HERNANDEZ, Petitioner, v. J. T. OCHOA, Warden, Respondent.

Jennifer L. Thurston

ORDER DENYING AS MOOT PETITIONER'S

MOTION FOR APPOINTMENT OF COUNSEL

(Doc. 21)

ORDER DENYING AS MOOT PETITIONER'S

MOTION FOR EXTENSION OF TIME TO FILE

NOTICE OF APPEAL (Doc. 22)

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

Petitioner filed the instant federal petition on July 27, 2010. (Doc. 1). On March 2, 2011, the Court issued an order granting Respondent's motion to dismiss the petition as untimely. (Doc. 19). The Court entered judgment and closed the case on that same date. (Doc. 20). On April 18, 2011, Petitioner filed a motion for appointment of counsel. (Doc. 21). Petitioner also filed a motion for extension of time to file a late notice of appeal. (Doc. 22). For reasons that are now unclear, no ruling was issued on those two pending motions.¹ Subsequently, the appeal was processed to the Ninth Circuit which, on June 27, 2012, denied Petitioner's request for issuance of a certificate of appealability and dismissed the appeal. (Doc. 27). Accordingly, Petitioner's requests for appointment of counsel and for an extension of time to file a notice of appeal are now moot.

1 One possible explanation is that, on the same date he filed the two instant motions, Petitioner also filed his notice of appeal, which was, under the circumstances, timely. Error! Main Document Only. See FRAP 4(a)(1)(A)(notice of appeal must be filed by the district clerk within 30 days after the judgment or order appealed from is entered). In any event, the Ninth Circuit treated Petitioner's appeal as timely when it considered, but refused, issuance of a certificate of appealability.

ORDER

For the foregoing reasons, the Court HEREBY ORDERS as follows:

1. Petitioner's motion for appointment of counsel (Doc. 21), is DENIED as MOOT; and,
2. Petitioner's motion for extension of time to file an untimely notice of appeal (Doc. 22), is DENIED as MOOT.

IT IS SO ORDERED.

Jennifer L. Thurston

UNITED STATES MAGISTRATE JUDGE