Opinion
No. CIV S-09-CV-0517 LKK CHS P.
May 16, 2011
ORDER
Petitioner, Paul Lewis, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a determinate sentence of sixteen years following his plea of nolo contendere in Sacramento County Superior Court to three counts of sexual penetration by force, two counts of oral copulation by force, six counts of rape by force, and six counts of sodomy by force. With his petition, Petitioner presented various claims challenging the constitutionality of his conviction.
The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On January 11, 2011, the magistrate judge filed findings and recommendations herein which recommended that the petition be denied. The magistrate judge's findings and recommendations were adopted by the assigned United States District Court Judge on April 18, 2011, making judgment final in this case. See 28 U.S.C. § 636(b)(1)(C). In addition, because Petitioner failed to make a substantial showing of the denial of a constitutional right with respect to any of the claims presented, a certificate of appealability was not issued.
Currently pending is Petitioner's motion for an extension of time to file a motion for a certificate of appealability due to his transfer from Florence Correctional Center in the state of Arizona to an unidentified prison in the state of Michigan. Petitioner is advised that a certificate of appealability has already been denied by the District Court Judge. It appears, however, that Petitioner wishes to appeal from the final judgment of the district court. Thus, Petitioner's request for an extension of time in which to file a motion for certificate of appealability is hereby construed as a motion for extension of time in which to file a notice of appeal. Petitioner is reminded that in order to file a notice of appeal in compliance with the federal rules, he must file a document entitled notice of appeal that (1) specifies in either the caption or the body of the notice that he is the appellant; (2) indicates which judgment, order, or part thereof he wishes to appeal; and (3) names the court to which his appeal will be taken. Fed.R.App.P. 3(c)(1).
Ordinarily, a notice of appeal in a civil case must be filed with the district court clerk within 30 days after the judgment or order appealed from is entered, which was April 18, 2011. FED. R. APP. P. 4(a)(1). Thus, Petitioner's has timely requested an extension of time. FED. R. APP. P. 4(a)(5). Good cause appearing, Petitioner's request for an extension of time is granted. Petitioner has thirty (30) days from the date of this order in which to file his notice of appeal. Id.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's April 29, 2011 request for an extension of time in which to file a motion for a certificate of appealability will be construed as a request for an extension of time in which to file a notice of appeal.
2. Petitioner's request for an extension of time is granted. Petitioner has thirty (30) days from the date of this order in which to file his notice of appeal.
DATED: May 13, 2011