(HC) Bisel v. Fisher ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY EUGENE BISEL, No. 1:17-cv-00013-ADA-SKO (HC) 12 Plaintiff, ORDER GRANTING APPELLANT’S MOTION FOR ENLARGEMENT OF TIME 13 v. TO FILE A NOTICE OF APPEAL, AS PERMITTED BY FEDERAL RULE OF 14 RAY FISHER, JR., et al., APPELLATE PROCEDURE 4(a)(5)(C), AND DENYING APPELLANT’S NOTICE OF 15 Defendants. APPEAL AS UNTIMELY 16 (ECF Nos. 97, 106) 17 18 I. 19 PROCEDURAL BACKGROUND 20 Petitioner and Appellant Gregory Eugene Bisel (“Appellant”) is a state parolee proceeding 21 pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 26, 2023, 22 this Court adopted the U.S. Magistrate Judge’s findings and recommendations, denying Appellant’s 23 petition for writ of habeas corpus and declining to issue a certificate of appealability. (ECF No. 24 95.) Judgment was entered that same day. (ECF No. 96.) 25 On March 3, 2023, Appellant filed a motion for a sixty-day extension of time to file an 26 application for a certificate of appealability. (ECF No. 97.) The U.S. Magistrate Judge construed 27 Appellant’s motion as a motion for an enlargement of time to file a notice of appeal and granted 28 1 the motion on March 9, 2023, requiring Appellant to file his notice of appeal no later than March 2 27, 2023. (ECF No. 98.) On March 29, 2023, Appellant filed a notice of appeal and signed it on 3 March 27, 2023. (ECF No. 99.) Because the parties in this case did not affirmatively consent to 4 the U.S. Magistrate Judge’s authority, the Ninth Circuit remanded this case to this Court with 5 instructions to consider Appellant’s March 3, 2023, motion. (ECF No. 103.) 6 On May 30, 2023, per the Ninth Circuit’s remand order, this Court construed Appellant’s 7 motion for enlargement of time to file an application for a certificate of appealability as a motion 8 for enlargement of time to file a notice of appeal and granted that enlargement of time, providing 9 nunc pro tunc to March 27, 2023, to file a notice of appeal. (ECF No. 104.) The date of March 27, 10 2023, which was originally ordered by the U.S. Magistrate Judge, (ECF No. 98), provided 11 Appellant thirty days to file a timely notice of appeal. See Fed. R. App. 4(a)(5)(A)(i)-(ii); see also 12 28 U.S.C. § 2107(c). 13 On June 1, 2023, the Ninth Circuit issued an order finding that Appellant is not entitled to 14 the benefit of the prison mailbox rule because he is not in custody and did not use an institution’s 15 internal mail system to mail his notice of appeal. (ECF No. 106 at 1-2 (citing Fed. R. App. P. 16 4(c)(1) and Houston v. Lack, 487 U.S. 266, 270 (1988)).) Because Appellant’s notice of appeal 17 was due by March 27, 2023, but was not filed until March 29, 2023, the Ninth Circuit suggested 18 that it lacked jurisdiction over the request for a certificate of appealability. (Id. at 2 (citing 28 19 U.S.C. § 2107(a), (c) and Fed. R. App. P. 4(a)(1), (5)).) The Ninth Circuit then ordered Appellant 20 to either move for voluntary dismissal of his request for a certificate of appealability or show cause 21 as to why it should not be dismissed for lack of jurisdiction within 21 days of service of the order. 22 (Id.) Appellant neither moved for voluntary dismissal of his request nor showed cause as to why it 23 should not be dismissed for lack of jurisdiction. (See Docket.) 24 On July 24, 2023, the Ninth Circuit remanded Appellant’s appeal to this Court for the 25 limited purpose of reconsidering the length of extension of time to file a notice of appeal granted 26 to Appellant pursuant to Federal Rule of Appellate Procedure 4(a)(5)(C) and whether the notice of 27 appeal was timely filed on March 29, 2023. (ECF No. 106.) 28 /// 1 II. 2 LEGAL STANDARD 3 Federal Rule of Appellate Procedure 22 provides that “[i]f the district judge has denied the 4 certificate [of appealability], the applicant may request a circuit judge to issue it.” Fed. R. App. 22. 5 According to Rule 4(a)(1)(A), “the notice of appeal required by Rule 3 must be filed with the district 6 clerk within 30 days after the entry of judgment or order appealed from.” Fed. R. App. 4(a)(1)(A); 7 see also 28 U.S.C. § 2107(a) (“[N]o appeal shall bring any judgment . . . before a court of appeals 8 for review unless notice of appeal is filed, within thirty days after such judgment . . . .”). For 9 motions for extension of time, the district court may extend the time to file a notice of appeal if “(i) 10 a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and (ii) 11 regardless of whether its motion is filed before or during the 30 days after the time prescribed by 12 this Rule 4(a) expires, that party shows excusable neglect of good cause.” Fed. R. App. 13 4(a)(5)(A)(i)-(ii); see also 28 U.S.C. § 2107(c). No extension may exceed 30 days after the 14 prescribed time or 14 days after the date when the order granting the motion is entered, whichever 15 is later. Fed. R. App. 4(a)(5)(C). The Ninth Circuit Court of Appeals lacks jurisdiction if the notice 16 of appeal was untimely. See Aldabe v. Aldabe, 616 F.2d 1089, 1091 (9th Cir. 1980). 17 An appellant not in custody who did not use an institution’s internal mail system to mail his 18 notice of appeal is not entitled to the benefit of the prison mailbox rule. See Fed. R. App. 4(c)(1); 19 Houston v. Lack, 487 U.S. 266, 270 (1988). “If an inmate files a notice of appeal in either a civil 20 or criminal case, the notice is timely if it is deposited in the institution’s internal mail system on or 21 before the last day for filing.” Fed. R. App. 4(c)(1). “The situation of prisoners seeking to appeal 22 without the aid of counsel is unique. Such prisoners cannot take the steps other litigants can take 23 to monitor the processing of their notices of appeal and to ensure that the court clerk receives and 24 stamps their notices of appeal before the 30-day deadline.” Houston, 487 U.S. at 270-71. 25 III. 26 DISCUSSION 27 The Court entered judgment on this matter on January 26, 2023, triggering the thirty-day 28 period to file a notice of appeal. Appellant had until February 27, 2023, to file his notice of appeal. 1 See Fed. R. Civ. P. 6. Appellant did not file a motion for an enlargement of time to file a notice of 2 appeal until March 3, 2023, four days following the expiration of the time period to file a notice of 3 appeal. (See ECF No. 97.) Because this was no later than 30 days after the 30-day time period 4 expired and Appellant demonstrated good cause due to his pro se status, the Court granted 5 Appellant until March 27, 2023, to file his notice of appeal. (ECF No. 104.) Because Appellant 6 timely filed a motion for an extension of time to file a notice of appeal, the Court grants Appellant’s 7 motion, providing nunc pro tunc to March 27, 2023, to file a notice of appeal. Fed. R. App. 8 4(a)(5)(A)(i)-(ii); see also 28 U.S.C. § 2107(c). 9 However, Appellant filed his notice of appeal on March 29, 2023, which is two days past 10 the deadline. (ECF No. 99.) Appellant may note that he had signed and mailed the notice of appeal 11 on March 27, 2023, arguing that he timely filed it based on the date of his signature. Nonetheless, 12 Appellant is not in custody and did not use an institution’s internal mail system to mail his notice 13 of appeal. Thus, he is not entitled to the benefit of the prison mailbox rule. See Fed. R. App. 14 4(c)(1); Houston, 487 U.S. at 270. Therefore, this Court lacks jurisdiction over Appellant’s appeal 15 due to the untimeliness of the notice. See Aldabe, 616 F.2d at 1091. 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 IV. 2 CONCLUSION 3 Accordingly, 4 1. Appellant’s motion for an extension of time to file a notice of appeal, (ECF No 97), is 5 GRANTED; 6 2. Appellant’s notice of appeal, (ECF No. 99), is untimely; and 7 3. The case remains closed. 8 9 19 | IT IS SO ORDERED. 11 Dated: _ September 7, 2023 UNITED f£TATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28