David Sudduth v. Arizona Attorney General William Gasper, Warden

Ninth Circuit

David Sudduth v. Arizona Attorney General William Gasper, Warden

921 F.2d 206, 90 Cal. Daily Op. Serv. 8963, 90 Daily Journal DAR 13943, 1990 U.S. App. LEXIS 21206, 1990 WL 193712

CourtCourt of Appeals for the Ninth Circuit

DecidedDecember 10, 1990

Docket90-15926

StatusPublished

Cited by10 cases

This text of 921 F.2d 206 (David Sudduth v. Arizona Attorney General William Gasper, Warden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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David Sudduth v. Arizona Attorney General William Gasper, Warden, 921 F.2d 206, 90 Cal. Daily Op. Serv. 8963, 90 Daily Journal DAR 13943, 1990 U.S. App. LEXIS 21206, 1990 WL 193712 (9th Cir. 1990).

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Opinion

ORDER

The district court order denying appellant’s petition for a writ of habeas corpus was entered on the docket on May 11, 1990. Appellant’s notice of appeal from that order was dated June 8, 1990, but was not filed until June 12, 1990. Thus, the notice *207 of appeal was not filed within 30 days of the entry of the judgment, as required under Fed.R.App.P. 4(a).

Because appellant is a pro se prisoner, however, his notice of appeal is deemed filed when it was delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 2382, 101 L.Ed.2d 245 (1988). Ordinarily, we will remand to the district court for the limited purpose of enabling that court to determine when the prisoner delivered the notice of appeal to prison authorities. See Miller v. Sumner, 872 F.2d 287 (9th Cir.1989); Miller v. Sumner, 921 F.2d 202 (9th Cir.1990).

However, under the facts of this case, such a remand is unnecessary. Because appellant’s notice of appeal was filed in the district court on the 31st day after entry of the order dismissing his petition, it must have been delivered to prison officials within 30 days. Otherwise, the notice of appeal could not have reached the district court in time to be filed on the 31st day. We decline to remand this case to the district court to require it to repeat this rudimentary calculation. Accordingly, we deem appellant’s notice of appeal to be timely. We further note that remands pursuant to Miller could be greatly reduced if prisons implemented a system whereby a prisoner’s notice of appeal is stamped with the date it is received by prison authorities.

Appellant’s motion “for judgment by default” is denied. Because there is no appearance by appellees, this case is deemed ready to calendar.

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ORDER

The district court order denying appellant’s petition for a writ of habeas corpus was entered on the docket on May 11, 1990. Appellant’s notice of appeal from that order was dated June 8, 1990, but was not filed until June 12, 1990. Thus, the notice *207 of appeal was not filed within 30 days of the entry of the judgment, as required under Fed.R.App.P. 4(a).

Because appellant is a pro se prisoner, however, his notice of appeal is deemed filed when it was delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 2382, 101 L.Ed.2d 245 (1988). Ordinarily, we will remand to the district court for the limited purpose of enabling that court to determine when the prisoner delivered the notice of appeal to prison authorities. See Miller v. Sumner, 872 F.2d 287 (9th Cir.1989); Miller v. Sumner, 921 F.2d 202 (9th Cir.1990).

However, under the facts of this case, such a remand is unnecessary. Because appellant’s notice of appeal was filed in the district court on the 31st day after entry of the order dismissing his petition, it must have been delivered to prison officials within 30 days. Otherwise, the notice of appeal could not have reached the district court in time to be filed on the 31st day. We decline to remand this case to the district court to require it to repeat this rudimentary calculation. Accordingly, we deem appellant’s notice of appeal to be timely. We further note that remands pursuant to Miller could be greatly reduced if prisons implemented a system whereby a prisoner’s notice of appeal is stamped with the date it is received by prison authorities.

Appellant’s motion “for judgment by default” is denied. Because there is no appearance by appellees, this case is deemed ready to calendar.

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921 F.2d 206, 90 Cal. Daily Op. Serv. 8963, 90 Daily Journal DAR 13943, 1990 U.S. App. LEXIS 21206, 1990 WL 193712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-sudduth-v-arizona-attorney-general-william-gasper-warden-ca9-1990.

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