Michael Webb v. D. Sisto

FILED
NOT FOR PUBLICATION JUN 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL WEBB, No. 08-17003
Petitioner - Appellant, D.C. No. 2:07-cv-01879-FCD-
DAD
v.
D. K. SISTO, Warden; EDMUND G. MEMORANDUM *
BROWN, Jr.,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior United States District Judge, Presiding
Submitted June 16, 2010 **
San Francisco, California
Before: SCHROEDER and BYBEE, Circuit Judges, and STOTLER, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Alicemarie Stotler, Senior United States District Judge
for the Central District of California, sitting by designation.
Petitioner Michael Webb appeals the order of the district court denying his
petition for a writ of habeas corpus. Webb concedes that he filed his notice of
appeal thirty-one days after the district court entered judgment. A notice of appeal
in a civil case “must be filed with the district clerk within 30 days after the
judgment or order appealed from is entered.” Fed R. App. P. 4(a)(1)(A). “An
appeal from a denial of habeas petition is considered a ‘civil’ matter and is thus
subject to the time limitations set forth in rule 4(a)” of the Federal Rules of
Appellate Procedure. Malone v. Avenenti, 850 F.2d 569, 571 (9th Cir. 1988). Rule
4(a) “is both mandatory and jurisdictional” because “Congress . . . specifically
limited our jurisdiction to hear civil appeals at 28 U.S.C. § 2107(a), which codifies
the same time constraints on the filing of civil appeals . . . that exist in Rule 4(a).”
United States v. Sadler, 480 F.3d 932, 937 (9th Cir. 2007) (emphasis removed).
We “must dismiss civil appeals that are untimely for lack of jurisdiction . . . .” Id.DISMISSED.
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