Arriola v. Pliler

114 F. App'x 879

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 10, 2004
• Docket: No. 03-56564; D.C. No. CV-01-11181-DDP
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Albert Arriola appeals the district court’s judgment denying his 28 U.S.C. § 2254 petition. We dismiss the appeal for lack of jurisdiction. Although the district court entered judgment on December 16, 2002, Arriola did not file his notice of appeal until August 5, 2003. His notice of appeal was untimely. See Fed. R.App. P. 4(a)(1)(A) (providing 30 days to file notice of appeal).

The district court granted Arriola’s motion for an extension of time to file a late notice of appeal, finding good cause for the untimely filing. However, a motion for an extension of time to file a notice of appeal must be made “not later than 30 days after the expiration of time prescribed by this Rule 4(a).” Fed. R.App. P. 4(a)(5). In the alternative, a motion to reopen the time to file a notice of appeal must be filed “within 180 days after the judgment ... is entered or within 7 days after the moving party receives notice of the entry, whichever is earlier.” Fed. R.App. P. 4(a)(6)(A). Arriola’s motion was filed 232 days after the entry of judgment, and as a result, he is not eligible for relief under either Rule 4(a)(5) or 4(a)(6)(A), and the district court lacked the authority to reopen or extend Arriola’s time for filing a notice of appeal. See Vahan v. Shalala, 30 F.3d 102, 103 (9th Cir.1994) (per curiam). Accordingly, we lack jurisdiction over this appeal.

DISMISSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.