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Ochoa v. Mendoza-Powers

United States District Court, E.D. California
Feb 5, 2010
1:07-cv-00208-AWI-JLT HC (Doc. 18) (E.D. Cal. Feb. 5, 2010)

Opinion

1:07-cv-00208-AWI-JLT HC (Doc. 18).

February 5, 2010


ORDER GRANTING PETITIONER'S MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL.


Plaintiff is a state prisoner proceeding pro se in a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

On January 18, 2007, Petitioner filed his petition in the United States District Court for the Central District of California, which transferred the case to this Court on February 8, 2007. (Docs. 1 2). On November 24, 2008, the case was assigned to a visiting judge, United States District Judge William W. Schwarzer. (Doc. 15). On April 16, 2009, Judge Schwarzer issued an order denying the petition and entering judgment against Petitioner. (Docs. 16 17). On June 8, 2009, Petitioner filed a notice of appeal containing a request to file a late notice of appeal due to "extraordinary" circumstances, i.e., that Petitioner was not fluent in English and that his "jailhouse lawyer" had been unavailable due to disciplinary problems. (Doc. 18). The appeal was processed to the United States Court of Appeals for the Ninth Circuit, which issued an order on July 29, 2009 remanding the case back to this Court for the limited purpose of addressing Petitioner's motion for an extension of time to file his notice of appeal. (Doc. 20).

The Court has only recently been made aware of the fact that shortly after issuing the order denying the petition in this case, Judge Schwarzer took inactive status and was no longer available to issue orders in this case. On February 3, 2009, the case was reassigned to the present District Judge and Magistrate Judge reflected in the case number.

DISCUSSION

Normally, a Notice of Appeal in a civil proceeding must be filed within thirty days after judgment or the order appealed from is entered. Fed.R.App.P. 4(a)(1)(A). However, Rule 4(a)(5) permits the district court to extend the time for filing of a notice of appeal if the party so moves no later than thirty days after the time proscribed by Rule 4(a) expires if the party shows "excusable neglect or good cause." Fed.R.App.P. 4(a)(5).

Here, judgement was entered on April 16, 2009. Thus, under Rule (a)(1)(A), the time for filing a notice of appeal would have expired thirty days later, i.e., on May 16, 2009. Under Rule 4(a)(5), Petitioner would then have had an additional thirty days, or until June 15, 2009, within which to file a timely motion for extension of time to file the notice of appeal. Here, as mentioned, Petitioner filed said motion on June 8, 2009, well within the thirty day limit prescribed by Rule 4(a)(5). Moreover, the Court finds that the circumstances set forth in Petitioner's motion constitute excusable neglect and good cause within the meaning of Rule 4(a)(5).

ORDER

Accordingly, good cause having been presented to the Court and GOOD CAUSE APPEARING THEREFOR, IT IS HEREBY ORDERED that Petitioner's motion for extension of time to file his Notice of Appeal (Doc. 18), is GRANTED.

IT IS SO ORDERED.


Summaries of

Ochoa v. Mendoza-Powers

United States District Court, E.D. California
Feb 5, 2010
1:07-cv-00208-AWI-JLT HC (Doc. 18) (E.D. Cal. Feb. 5, 2010)
Case details for

Ochoa v. Mendoza-Powers

Case Details

Full title:ANGEL OCHOA, Petitioner, v. K. MENDOZA-POWERS, Respondent

Court:United States District Court, E.D. California

Date published: Feb 5, 2010

Citations

1:07-cv-00208-AWI-JLT HC (Doc. 18) (E.D. Cal. Feb. 5, 2010)