(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 Petitioner, ORDER CONSTRUING PETITIONER’S MOTION FOR ENLARGEMENT OF TIME 13 TO FILE APPLICATION FOR CERTIFICATE OF APPEALABILITY AS MOTION FOR 14 v. ENLARGEMENT OF TIME TO FILE NOTICE OF APPEAL AND GRANTING 15 ENLARGEMENT OF TIME 16 RAY FISHER, JR., et al., (ECF No. 97) 17 Respondents. ORDER CONSTRUING MOTION FOR ENLARGEMENT OF TIME AS NOTICE OF 18 APPEAL 19 (ECF No. 99) 20 ORDER DIRECTING CLERK OF COURT TO SERVE ORDER ON NINTH CIRCUIT 21 COURT OF APPEALS 22 23 Petitioner Gregory Eugene Bisel (“Petitioner”) is a state parolee proceeding pro se with a 24 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 26, 2023, the Court 25 issued an order denying the petition and declining to issue a certificate of appealability. (ECF No. 26 95.) On March 3, 2023, Petitioner filed a motion for enlargement of time to file an application for 27 certificate of appealability in the Ninth Circuit Court of Appeal. (ECF No. 97.) On the same date, 28 the Ninth Circuit forwarded the motion to this Court. As previously noted, the District Court 1 declined to issue a certificate of appealability. Therefore, insofar as this Court is concerned, the 2 motion is moot. 3 At the time Petitioner filed his motion, he had not yet filed a notice of appeal. Under Rule 4 4(a)(1)(A) of the Federal Rules of Appellate Procedure, a notice of appeal must be filed within 5 thirty days of the entry of judgment. In this case, the notice of appeal was due on February 27, 6 2023. However, pursuant to Rule 4(a)(5)(A)(i) of the Federal Rules of Appellate Procedure, the 7 Court may extend the time to file a notice of appeal if the party moves no later than thirty days after 8 the expiration of the thirty days provided in Rule 4(a)(1) for filing said notice. Given Petitioner’s 9 pro se status, the Court will liberally construe his motion as a motion for enlargement of time to 10 file a notice of appeal under Rule 4(a)(5)(A)(i). Petitioner’s motion was within the time frame 11 provided in the Rule, and the Court finds good cause to grant the motion. Accordingly, pursuant 12 to Rule 4(a)(5)(A)(i) of the Federal Rules of Appellate Procedure, the Court grants Petitioner an 13 extension of time nunc pro tunc to March 27, 2023, to file a notice of appeal. 14 On March 29, 2023,1 Petitioner filed a motion for enlargement of time of ninety days to file 15 an appeal in the Ninth Circuit Court of Appeals. (ECF No. 99.) On the same date, the motion was 16 forwarded to this Court from the Ninth Circuit. (ECF Nos. 100, 101.) Under Rule 4(a)(5)(C) of 17 the Federal Rules of Appellate Procedure, the Court cannot grant a further extension of time beyond 18 that already granted. In light of Petitioner’s pro se status, the Court will liberally construe his 19 motion as a notice of appeal. 20 Accordingly, 21 1) The Court construes Petitioner’s motion, (ECF No. 97), as a motion for an extension of 22 time to file a notice of appeal; 23 2) The Court grants Petitioner an extension of time nunc pro tunc to March 27, 2023, to 24 file a notice of appeal; 25 26 1 Although the motion was filed in the Ninth Circuit on March 29, 2023, Petitioner’s proof of service is dated March 27, 2023. The Supreme Court has held that a pro se habeas petitioner’s notice of appeal is 27 deemed filed on the date of its submission to prison authorities for mailing, as opposed to the date of its receipt by the court clerk. Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 2385 (1988). Accordingly, 28 the notice of appeal is deemed filed on March 27, 2023, and is therefore timely. 1 3) The Court construes Petitioner’s motion for enlargement of time, (ECF No. 99), as a 2 notice of appeal; and 3 4) The Clerk of Court is directed to serve this order on the Ninth Circuit Court of Appeals. 4 5 6 | TPIS SO ORDERED. 7 Dated: _ May 30, 2023 UNITED fTATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28