(HC) Simms v. Lynch

• Court: District Court, E.D. California
• Decided: February 11, 2025
• Docket: 2:21-cv-00035
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT LEE SIMMS, Case No. 2:21-cv-0035-DJC-JDP (P) 12 Petitioner, 13 v. ORDER 14 JEFF LYNCH, 15 Respondent. 16 17 18 Petitioner, a state prisoner, brought this action under section 2254. ECF No. 1. On 19 October 10, 2023, I recommended that his petition be denied on the merits. ECF No. 36. The 20 district judge adopted those recommendations over petitioner’s objections, ECF No. 37, on 21 December 1, 2023, and judgment was entered the same day. ECF Nos. 38 & 39. Petitioner did 22 not file a timely appeal. Then, nearly a year later, on September 3, 2024, petitioner moved for 23 permission to file a late appeal. ECF No. 40. In a one-paragraph filing, he contends that he 24 mailed the forms necessary to submit an appeal in November 2023, but did not receive an 25 acknowledgement. Id. at 1. His motion for a late appeal is denied. 26 Under 28 U.S.C. § 2107(a), a litigant must file their notice of appeal within thirty days of 27 the entry of judgment. If a litigant fails to meet that deadline, 28 U.S.C. § 2107(c) sets forth the 28 1 | following procedure: 2 The district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, 3 extend the time for appeal upon a showing of excusable neglect or 4 good cause. In addition, if the district court finds— (1) that a party entitled to notice of the entry of a judgment 5 or order did not receive such notice from the clerk or any 6 party within 21 days of its entry, and

7 (2) that no party would be prejudiced, the district court may, upon motion filed within 180 days after entry 8 of the judgment or order or within 14 days after receipt of such notice, whichever is earlier, reopen the time for appeal for a period 9 of 14 days from the date of entry of the order reopening the time for appeal. 10 11 Here, the lateness of petitioner’s motion for extension cannot be excused. Nearly a year 12 | passed between entry of judgment and the immediate motion. Moreover, his excuse, that he 13 | mailed appeal documents in November 2023, before judgment was even entered, strains credulity. 14 | In any event, petitioner cannot show good cause or excuse for waiting a lengthy period between 15 | the erroneous submission of documents and this motion. The thirty-day deadline exists “to set a 16 | definite point of time when litigation shall be at an end, unless within that time the prescribed 17 | application has been made; and if it has not, to advise prospective appellees that they are freed of 18 || the appellant’s demands.” Melendres v. Maricopa Cty., 815 F.3d 645, 649 (9th Cir. 2016) 19 | (quoting Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257, 264 (1978)) (internal quotation 20 | marks omitted). 21 Accordingly, it is ORDERED that petitioner’s motion to file late appeal, ECF No. 40, is 22 | DENIED. 23 IT IS SO ORDERED.

Dated: _ February 10, 2025 ow—— 26 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE