(HC) Gibbs v. Unknown ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT A. GIBBS, 12 Petitioner, No. 2:21-cv-02023-TLN-CKD 13 14 v. ORDER UNKNOWN, 15 Respondent, 16 17 18 19 Petitioner, proceeding pro se, filed an application for writ of habeas corpus under 28 20 U.S.C. § 2254, which was dismissed July 11, 2022. (ECF No. 9.) Judgment was entered that 21 day. (ECF No. 10.) On August 24, 2022, Petitioner filed a notice of appeal. (ECF No. 11.) 22 Pursuant to 28 U.S.C. § 2107(a), a notice of appeal must be filed within 30 days of the entry of 23 judgment. Petitioner’s notice of appeal was untimely. 24 On August 25, 2022, the United States Court of Appeals for the Ninth Circuit issued an 25 order to show cause as to why Petitioner’s request for a certificate of appealability should not be 26 dismissed for lack of jurisdiction. (ECF No. 17 at 1.) On September 7, 2022, Petitioner 27 subsequently filed a motion for extension of time to file a notice of appeal. (ECF No. 15.) In his 28 1 | motion, Petitioner alleged he did not receive the Court’s entry of judgment until July 25, 2022, as 2 | he was out of state. (ECF No. 15 at 1.) He further asserted the delay was due to his lack of 3 | knowledge of the process for filing a notice of appeal. Ud.) Additionally, he stated he was slow 4 | to react to Court orders because he had been “severely ill.” (d.) 5 Pursuant to § 2107(c), the Court may deem Petitioner’s notice of appeal timely by a 6 | showing of “excusable neglect or good cause.” On September 13, 2022, the magistrate judge 7 | issued an order denying Petitioner’s motion stating Petitioner failed to show excusable neglect or 8 | good cause. (ECF No. 16.) On October 27, 2022, the Ninth Circuit remanded this action to this 9 | Court stating that because both parties did not consent to the magistrate judge’s authority, this 10 | Court must consider Petitioner’s motion to extend time. (ECF No. 17 at 2.) 11 The Court finds Petitioner has not shown either excusable neglect or good cause. 12 || Petitioner’s assertion of illness is vague and seemingly contradicts his assertion that he has been 13 | out of state looking for work. Moreover, Petitioner had 16 days to file the notice of appeal after 14 | returning from out of state. Finally, as to Petitioner’s lack of understanding of the process, 15 | Petitioner has failed to indicate what steps he took to educate himself before the deadline lapsed 16 | or why his ignorance of the rules amounts to excusable neglect. See Bonner v. Leon, Case No. 17 2:13-cv-01858-APG-VCF, 2013 WL 6693649, at *2 (D. Nev. Dec. 17, 2013) (stating that good 18 | cause is “more than simple inadvertence . . . or ignorance of the rules”). 19 Accordingly, IT IS HEREBY ORDERED: 20 1. Petitioner’s Motion for Extension of Time (ECF No. 15) is DENIED; and 21 2. The Clerk of Court is directed to serve a copy of this order on Plaintiff and on the 22 | Ninth Circuit Court of Appeals. 23 | DATED: December 12, 2022 / 24 /] / 25 “A Man Vika 26 Troy L. Nunley ] United States District Judge 27 28