John Hays v. J. Hamlet

FILED
NOT FOR PUBLICATION DEC 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN R. HAYS, No. 12-56872
Petitioner - Appellant, D.C. No. 5:02-cv-00478-GAF-CW
v.
MEMORANDUM*
J. HAMLET and C. A. TERHUNE,
Respondents - Appellees.
JOHN R. HAYS, No. 13-57166
Petitioner - Appellant, D.C. No. 5:02-cv-00478-GAF-CW
v.
J. HAMLET and C. A. TERHUNE,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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Submitted December 10, 2014**
Pasadena, California
Before: SILVERMAN, BEA, and CHRISTEN, Circuit Judges.
Petitioner John R. Hays appeals from the district court’s denial of his
Federal Rule of Civil Procedure 60(b) motion as an unauthorized successive
habeas petition. We dismiss the appeal for lack of jurisdiction due to an untimely
notice of appeal.
A habeas corpus action is considered a “civil” matter and therefore is subject
to the time limitations set forth in Federal Rule of Appellate Procedure 4(a).
Malone v. Avenenti, 850 F.2d 569, 571 (9th Cir. 1988). Under Rule 4(a)(1)(A), a
notice of appeal in a civil case must be filed “within 30 days after entry of the
judgment or order appealed from.” “The 30-day time limit of Rule 4(a) is
mandatory and jurisdictional.” Pettibone v. Cupp, 666 F.2d 333, 334 (9th Cir.
1981). Appeals that are not timely filed “‘must be dismissed for want of
jurisdiction.’” Bowles v. Russell, 551 U.S. 205, 213 (2007).
The district court denied Hays’ Rule 60(b) motion in an order entered on
August 10, 2012. Hays’ notice of appeal was delivered to prison authorities for
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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forwarding on October 3, 2012, more than thirty days after the order was entered.1
Cf. Houston v. Lack, 487 U.S. 266, 270 (1988) (holding that a notice of appeal by a
pro se prisoner is considered filed for the purposes of Rule 4(a)(1) at the moment it
is delivered to prison authorities for forwarding). Therefore, Hays’ notice of
appeal is untimely unless he is able to reopen the time to file an appeal under
Federal Rule of Appellate Procedure 4(a)(6) or extend the time to file his notice of
appeal under Federal Rule of Appellate Procedure 4(a)(5).
The parties agree that the district court correctly determined that it lacked
jurisdiction to consider Hays’ Federal Rule of Appellate Procedure 4(a)(6) motion
because the motion was untimely under Rule 4(a)(6)(B). See Bowles, 551 U.S. at
209 (holding that the time limits set forth in 28 U.S.C. § 2107(c) and Fed. R. App.
P. 4(a)(6) are “‘mandatory and jurisdictional’”). Therefore, the district court did
not abuse its discretion in denying Hays’ Rule 4(a)(6) motion. See Nguyen v. Sw.
Leasing & Rental, Inc., 282 F.3d 1061, 1064 (9th Cir. 2002) (“We review the grant
or denial of a motion brought pursuant to Rule 4(a)(6) for an abuse of discretion.”).
1
We note that Federal Rule of Appellate Procedure 4(a)(7), which governs
the date on which an order is deemed filed for appeal timing purposes, states that
an order is filed as soon as it is entered on the civil docket. Thus, the district
court’s order denying Hays’ Rule 60(b) motion was filed on August 8, 2012.
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Further, Hays’ pro se “declaration of timeliness” did not qualify as a motion
for extension of time to file a notice of appeal under Federal Rule of Appellate
Procedure 4(a)(5). When a party seeks an extension of time under Rule 4(a)(5)
after the 30-day period prescribed by Rule 4(a)(1) has elapsed, “he must do so by
formal motion with notice to the other parties.” Malone, 850 F.2d at 572. Hays’
“declaration of timeliness” did not constitute a formal motion for extension of time
because the filing “did not explicitly request an extension of time.” Id.In sum, Hays’ notice of appeal was filed on October 3, 2012, over thirty
days after the district court denied his Rule 60(b) motion on August 10, 2012. The
district court properly denied his Rule 4(a)(6) motion, and his “declaration of
timeliness” did not qualify as a Rule 4(a)(5) motion. Therefore, we must dismiss
the appeal for lack of jurisdiction. See Bowles, 551 U.S. at 213.
DISMISSED.