(HC) Donovan v. Diaz

Opinion

JEREMIAH DONOVAN, No. 1:20-cv-00694-ADA-EPG (HC) Petitioner, ORDER DENYING PETITIONER’S APPLICATION FOR EXTENSION OF TIME v. TO FILE NOTICE OF APPEAL AND REQUEST FOR RECONSIDERATION ORDER GRANTING PETITIONER’S Respondent. REQUEST FOR COPY OF OBJECTIONS TO FINDINGS AND RECOMMENDATIONS ORDER DIRECTING CLERK OF COURT TO OBJECTIONS TO FINDINGS AND ORDER DIRECTING CLERK OF COURT TO FILE NOTICE OF APPEAL AND PROCESS (ECF No. 36) Petitioner Jeremiah Donovan is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 25, 2022, the assigned United States Magistrate Judge issued findings and recommendations that recommended granting Respondent’s motion to dismiss and dismissing the second amended petition as untimely. (ECF No. 29.) On October 5, 2022, Petitioner filed objections. (ECF No. 33.) The Court adopted those findings and recommendations, in full, on January 10, 2023. (ECF No. 34.) That same day, judgment was entered. (ECF No. 35.) In its order adopting the findings and recommendations, the Court declined to issue a certificate of appealability (“COA”) because “reasonable jurists would not find the Court’s determination that the petition should be dismissed debatable of wrong, or that Petitioner should be allowed to proceed further.” (Id. at 5.) On January 26, 2023, the Court received the instant application for an extension of time to file notice of appeal and request for reconsideration for certificate of appealability and production of document. (ECF No. 36.) Petitioner contends that he needs the extension of time and a copy of his objections to the findings and recommendations to adequately and effectively prepare his request for reconsideration for a certificate of appealability. (Id. at 2.) Petitioner attaches his notice of appeal to the application. (ECF No. 36 at 1, 6.) Rule 4 of the Federal Rules of Appellate Procedure provides that in a civil case, the notice of appeal (“NOA”) “must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). “Rule 4(a)(5) provides a thirty- day grace period within which parties may request more time to file a NOA upon a showing of good cause or excusable neglect.” Washington v. Ryan, 833 F.3d 1087, 1090 (9th Cir. 2016). “‘Good cause’ is a non-rigorous standard that has been construed broadly across procedural and statutory contexts.” United States v. Navarro, 800 F.3d 1104, 1109 (9th Cir. 2015) (quotation marks omitted) (quoting Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010)) (discussing “good cause” in context of Fed. R. App. P. 4(b)(4)). Here, the fact that Petitioner wishes additional time to prepare and file a motion for this Court to reconsider its COA determination does not constitute good cause to extend the time to file a NOA given that: (1) Petitioner has already prepared his notice of appeal and lodged it with the Court, (ECF No. 36 at 5–100); (2) the Ninth Circuit rules provide that “[i]f the district court denies a COA as to all issues, appellant may file a request for a COA in the court of appeals within 35 days of the filing of a notice of appeal or amended notice of appeal, or the district court’s denial of a COA in full, whichever is later,” and “[i]f, after the district court has denied a COA in full, the court of appeals also denies a COA in full, appellant, pursuant to Circuit Rule 27-10, may file a motion for reconsideration,” 9th Cir. R. 22-1(d); and (3) this Court previously considered Petitioner’s objections to the findings and recommendation, which Petitioner indicates 1s necessary to prepare his motion for reconsideration, when it declined to issue a COA. (ECF No. 34). Accordingly, 1. Petitioner’s application for an extension of time to file a notice of appeal and request for reconsideration, (ECF No. 36), is denied; 2. Petitioner’s request for a copy of the objections to the findings and recommendations is granted; and 3. The Clerk of Court is directed to: a. Mail a copy of the objections to the findings and recommendations (ECF No. 33) to Petitioner; and b. File the notice of appeal (ECF No. 36 at 5—100) with the original file date of January 26, 2023 and process the appeal to the United States Court of Appeals for the Ninth Circuit. TIS SO ORDERED. Dated: _ March 7, 2023 UNITED f£TATES DISTRICT JUDGE