Opinion
No. Civ. S 98-1816 FCD PAN P.
October 5, 2005
Order
September 6, 2005, petitioner filed a request for additional time to file a notice of appeal of this court's August 8, 2005, order and judgment denying his petition for a writ of habeas corpus.
A timely notice of appeal is a jurisdictional prerequisite to appealing a judgment of the district court. Fed.R.App.P. 4(a);Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978). Ordinarily, a party in a civil case must file the notice within 30 days after judgment is entered. Fed.R.App.P. 4(a). If a party files a motion pursuant to Fed.R.Civ.P. 60 within ten days of the entry of judgment, time to file a notice of appeal runs from entry of the order disposing of the motion. Fed.R.App.P. 4(a)(4)(A)(vi). The district court may extend the time if a party so moves within 30 days of the time the notice must be filed and the party shows either excusable neglect or good cause. Fed.R.App.P. 5(A).
A court may find excusable neglect upon a showing a party failed timely to file because of careless omission to act. See Pincay v. Andrews, 351 F.3d 947, 950 (9th Cir. 2003). Since petitioner sought an extension before time to appeal expired, he cannot satisfy this standard. See State of Oregon v. Champion International Corp., 680 F.2d 1300, 1301 (per curiam) (noting the good cause language was added to the rule because the excusable neglect standard does not fit the situation in which an appellant seeks an extension before the expiration of the initial appeal period); see also Fed.R.App.P. 4(a)(5) advisory committee note.
August 22, 2005, petitioner filed a motion pursuant to Rule 60(b) and the court denied that motion September 1, 2005. Accordingly, petitioner must file a notice of appeal no later than October 4, 2005.
September 6, 2005, petitioner submitted a five-page memorandum with citations to legal authorities explaining he cannot timely file a notice of appeal because his access to the law library has been limited. He does not explain how he could draft such a request but not file a notice of appeal and so fails to show good cause.
Accordingly, petitioner's September 6, 2005, request is denied.
So ordered.