Opinion
No. CIV S-01-1724 LKK KJM P.
September 25, 2007
ORDER
Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus. On March 28, 2007, the court denied the petition and entered judgment. On May 14, 2007, petitioner filed a notice of appeal and request for a certificate of appealability. Although the court deemed them to have been filed on May 4, 2007, one of the two dates on the certificate of service, the court nevertheless found the appeal to have been filed late and denied a certificate of appealability.
On July 9, 2007, while petitioner's request for a certificate of appealability was pending in the Court of Appeals, petitioner filed a motion for reconsideration of the denial of the certificate of appealability. On August 7, 2007, the Court of Appeals denied the certificate of appealability.
In Malone v. Avenenti, 850 F.2d 569, 572 (9th Cir. 1988), the Court of Appeals held that if a litigant fails to file an extension of time within the thirty day period for filing the notice of appeal under Fed.R.App.P. 4(a)(1) and similarly fails to move for an extension of time within the thirty day grace period under Fed.R.App.P. 4(a)(5), there is no appellate jurisdiction. The court also recognized that there was no exception for pro per litigants or habeas corpus cases. Id.
Because petitioner did not timely file either a notice of appeal or a request for an extension of time, the court declines to reconsider the order denying the certificate of appealability.
IT IS HEREBY ORDERED that petitioner's July 9, 2007 motion for reconsideration is denied.