Vargas v. California Dept. of Corrections ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAUL B. VARGAS, Case No.: 20-cv-516 LAB-JLB 12 Petitioner, ORDER CONSTRUING LETTER AS 13 v. NOTICE OF APPEAL [Dkt. 12] 14 SCOTT FRAUENHEIM, Warden, et al., 15 Respondents. 16 Raul B. Vargas (“Petitioner”) is a state prisoner proceeding pro se with a Petition for 17 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Dkt. 1.) Petitioner challenges his 18 San Diego County Superior Court conviction for second degree murder with the additional 19 finding that he personally used a deadly weapon, a knife, true findings on two prior strike 20 allegations and resultant sentence of 46 years to life. By its October 19, 2020 Order, the 21 Court denied the Petition and denied a certificate of appealability. (Dkt. 9.) 22 Petitioner received that Order on November 2, 2020 and, two days later, wrote a 23 letter to the Court seeking a 120-day extension of “any deadlines.” (Dkt. 12.) The prison’s 24 response to the COVID-19 pandemic, he explained, included restrictions on access to the 25 prison library, so he “[did] not know how to proceed or if there[’]s a time limit for [him] 26 to get back at the Court to proceed with [his] appeal.” Id. That letter, apparently subject to 27 a delay in the mail, didn’t arrive in the Clerk’s office until December 18, 2020, forty-four 28 / / / 1 || days after it was written. The Court accepted the letter nunc pro tunc to November 4, 2020. 2 || (Dkt. 11.) 3 Appellants must file a notice of appeal within 30 days of the order being appealed 4 from. Fed. R. App. P. 4(a). Trial courts have limited power to extend that deadline. Fed. R. 5 || App. P. 4(b). But there is no need for an extension where a timely filing, although styled 6 || as a different document, provides notice sufficient to apprise the courts and parties of the 7 ||litigant’s intent to appeal. Smith v. Barry, 502 U.S. 244, 248-49, 112 S. Ct. 678, 682, 116 8 ||L. Ed. 2d 678 (1992). A motion for extension of time to file a notice of appeal “may be 9 || considered the functional equivalent of” the notice itself if it gives notice of: (1) the party 10 || taking the appeal; (2) the judgment or order being appealed; and (3) the court to which the 11 || appeal is taken. Andrade v. Attorney General of State of California, 279 F.3d 743, 752 (9th 12 || Cir. 2001); see also Fed. R. App. P. 3(c)(1) (requirements for notice of appeal); Barry, 13 U.S. at 248 (requiring liberal construction of Rule 3). 14 Petitioner’s letter was filed within the 30-day window for notices of appeal, it 15 ||identifies Petitioner as the party taking the appeal, and it designates the Court’s Order 16 || “den[ying] my Petition for Writ of Habeas Corpus” as the matter being appealed. While it 17 || doesn’t state that the appeal would go to the Ninth Circuit Court of Appeals, that failure is 18 “immaterial” where the appeal would normally go to that Court. U.S. v. Blue, 350 F.2d 19 || 267, 270-71 (9th Cir. 1965), rev’d on other grounds by U.S. v. Blue, 384 U.S. 251 (1966); 20 || see also, e.g., United States v. Cantwell, 470 F.3d 1087, 1089 (5th Cir. 2006) (motion for 21 ||extension of time that doesn’t identify appellate court suffices as notice of appeal where 22 || that court “is the only court to which [appellant] could appeal’). 23 The Court construes the letter as a notice of appeal. The Clerk of Court is 24 || ORDERED to serve the letter and a copy of this Order pursuant to Fed. R. App. P. 3(d). 25 IT IS SO ORDERED. 26 || Dated: December 28, 2020 lau A d Zyl a7 Hon. Larry Alan Burns 28 Chief United States District Judge