Opinion
Civil Action 2:10-CV-8
09-06-2023
JOSE TORRES-HURTADO, Petitioner, v. WARDEN KUMA DEBOO, Respondent.
Kleeh,Judge.
REPORT AND RECOMMENDATION
MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Pending before this Court is petitioner's Motion for Leave to File an out of Time Notice of Appeal [Doc. 22], filed September 5, 2023. Therein, petitioner seeks leave to file a notice of appeal. This matter is assigned to the Honorable Thomas S. Kleeh, District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and recommendation for disposition, pursuant to 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B) and Local Rule of Civil Procedure 7.02(c) and 72.01. For the reason that follows, the undersigned recommends that the Motion be denied.
II. PROCEDURAL HISTORY
Petitioner originally filed this action on January 21, 2010. [Doc. 1]. On April 29, 2010, Magistrate Judge Seibert entered a Report and Recommendation (“R&R”) recommending that the petition be denied and dismissed with prejudice. [Doc. 13]. On May 6, 2010, petitioner filed objections to the R&R. [Doc. 17]. On July 6, 2010, Judge Bailey entered an Order adopting the R&R, granting respondent's Motion to Dismiss, and denying and dismissing the petition with prejudice. [Doc. 18]. That Order informed petitioner that he must file any notice of appeal within thirty days from entry of the Order. Id. Now, more than thirteen years later, petitioner seeks leave to file a notice of appeal.
III. STANDARD OF REVIEW
Under Federal Rule of Appellate Procedure 4, a district court may extend the time to file a notice of appeal when “regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A)(ii).
IV. ANALYSIS
Petitioner's only reason provided for the extension is the unsupported allegation that “Petitioner did not receive notice until it was brought to his attention.” [Doc. 22 at 3]. However, the docket reflects that service of the dismissal order was accepted on July 7, 2010.
Further, since the dismissal of this case, petitioner has pursued a number of 2241 petitions, and in several court orders in habeas cases and in an appeal in his criminal case, petitioner has been made aware that the case filed in this district had been ruled upon. See Torres-Hurtado v. Gill, 1:14-CV-00145-JLT, ECF No. 10 at 3 (E.D. Ca. May 14, 2014) (“Petitioner presented this identical claim to the United States District Court for the Northern District of West Virginia . . . which the court reviewed on its merits and denied with prejudice on May 3, 2010.”); Torres-Hurtado v. Zuniga, 1:16-CV-01354-LJO-JLT, ECF No. 19 at 3 (E.D. Ca. Jan. 20, 2017) (same) report and recommendation adopted at ECF No. 26 (E.D. Ca. Feb. 15, 2017), aff'd 707 Fed.Appx. 913 (9th Cir. 2017) (“As noted by the district court, Torres-Hurtado unsuccessfully raised this argument in a section 2241 petition filed in the Northern District of West Virginia.”); United States v. Torres-Hurtado, No. CR 04-00186-CBM-9, 2018 WL 5801874, at *2 (C.D. Cal. Oct. 11, 2018), aff'd, 793 Fed.Appx. 588 (9th Cir. 2020) (“On January 21, 2010, Defendant filed an Application for Habeas Corpus Pursuant to 28 U.S.C. § 2241 in the Northern District of West Virginia .... The district court adopted the findings and recommendation of the magistrate judge, and denied Defendant's petition on the merits.”).
Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts “may properly take judicial notice of public record”); Colonial Penn. Ins. Co. v. Coil, 887 F.2d 1236, 21239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the contents of court records.'”).
It appears the District Court for the Eastern District of California cited the amended R&R rather than the later dismissal order.
V. RECOMMENDATION
For the foregoing reasons, the undersigned recommends that Petitioner Hurtado-Torres' Motion for Leave to File an Out of Time Notice of Appeal [Doc. 22] be DENIED.
Within fourteen (14) days after being served with a copy of this Recommendation, any party may file with the Clerk of this Court, specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection. A copy of such objections should also be submitted to the United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitations, consistent with LR PL P 12.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
This Report and Recommendation completes the referral from the district court. The Clerk is DIRECTED to terminate the Magistrate Judge's association with this case.
The Clerk of the Court is further DIRECTED to provide copies of this Report and Recommendation to all counsel of record herein.
It is so ORDERED.