Johnny Twitty v. State of Washington

FILED
NOT FOR PUBLICATION
APR 12 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNNY TWITTY, No. 14-35728
Petitioner - Appellant, D.C. No. 3:13-cv-05947-BJR
v.
MEMORANDUM*
STATE OF WASHINGTON,
Respondent,
And
PATRICK GLEBE,
Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Barbara Jacobs Rothstein, Senior District Judge, Presiding
Submitted April 8, 2016**
Seattle, Washington
Before: HAWKINS, RAWLINSON, and CALLAHAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Twitty attempts to appeal the district court’s order denying his habeas corpus
petition under 28 U.S.C. § 2254. Because we conclude that he did not timely file a
notice of appeal, we lack jurisdiction over the appeal and dismiss.
Twitty was convicted in Washington state court of attempted first-degree
murder and first-degree unlawful possession of a firearm. His federal petition alleged
ineffective assistance of counsel, a defective jury instruction, insufficiency of the
evidence and admission of prejudicial evidence. The district court adopted the
magistrate’s report and recommendation and entered judgment denying all claims on
July 18, 2014. Thirty-two days later, on August 19, 2014, Twitty, acting pro se,
signed, dated and deposited in the prison mail (mailing to both the district court and
this court) a document entitled, “Certificate of Appealability,” stating an intention to
appeal the district court’s order.1
This court determines de novo whether a notice of appeal is timely. Ford v.
MCI Commc’ns Corp. Health & Welfare Plan, 399 F.3d 1076, 1079 (9th Cir. 2005),
overruled on other grounds in Cyr v. Reliance Std. Life Ins., 642 F.3d 1202, 1207 (9th
Cir. 2011). The relevant statute clearly requires a notice of appeal to be filed within
thirty days after the entry of judgment. 28 U.S.C. § 2107(a); see also Fed. R. App. P.
1
We construe this document as a Notice of Appeal. See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed.”).
2
4(a)(1). Filing an appeal within this time period is mandatory and jurisdictional. See
Ray Haluch Gravel Co. v. Central Pension Fund, 134 S. Ct. 773, 779 (2014). If there
is not a timely appeal, the circuit court has no jurisdiction to review the district court
order. See Bowles v. Russell, 551 U.S. 205, 209-10 (2007); Browder v. Director,
Dep’t of Corrections of Illinois, 434 U.S. 257, 265 (1978).
Pro se prison inmates are given a little flexibility with respect to these
requirements under the “prison mailbox rule.” See Houston v. Lack, 487 U.S. 266
(1988). In such cases, it does not matter the actual date the document is received and
filed with the court, so long as the inmate has deposited the notice “in the institution’s
internal mail system on or before the last day for filing.” Fed. R. App. P. 4(c)(1)
(codifying prison mailbox rule).
Here, however, Twitty cannot avail himself of the mailbox rule because he did
not deposit his Certificate of Appealability in the prison mail system until thirty-two
days after entry of judgment, or one day late (because thirty days fell on a Sunday).
In his response to this court’s order, it clearly appears this was because he mistakenly
believed he could file an appeal within thirty days of his receipt of the judgment, as
opposed to what the statute requires – thirty days within district court’s entry of the
judgment. Twitty’s appeal is thus untimely, and we must dismiss for lack of
jurisdiction.
DISMISSED.
3