Hedgepeth v. Madden

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 HASSON HEDGEPETH, 11 Case No. 20-cv-00858 BLF (PR) Petitioner, 12 ORDER DENYING MOTION FOR v. CERTIFICATE OF 13 APPEALABILITY AND TO REOPEN 14 R. MADDEN,

15 Respondent.

16 (Docket No. 38)

17 18 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas 19 corpus under 28 U.S.C. § 2254, challenging his state conviction. On March 14, 2022, the 20 Court denied the petition on the merits of the two claims presented, and also denied a 21 certificate of appealability (“COA”). Dkt. No. 35. 22 On November 10, 2022, Petitioner filed a motion for COA and to reopen this matter 23 to file further briefing. Dkt. No. 38. Petitioner claims that in April 2022, he filed a prior 24 motion for a COA to which he received no response. Id. However, the only filing on the 25 docket since judgment was entered on March 14, 2022, Dkt. No. 36, is a notice of change 26 of address filed by Petitioner on May 2, 2022. Dkt. No. 37. 27 The Court already considered and denied a certificate of appealability, finding 1 “demonstrated that ‘reasonable jurists would fine the district court’s assessment of the 2 || constitutional claims debatable or wrong.’” Dkt. No. 35 at 13, citing Slack v. McDaniel, 3 || 529 U.S. 473, 484 (2000). The Court finds no good cause to consider the matter further. 4 || Accordingly, the motion is DENIED. 5 Petitioner also states “NOA showing of good cause” in the heading of his motion, 6 || but then makes no mention of a notice of appeal in the document. Dkt. No. 38 at 1. An 7 || appeal of right may be taken only by filing a valid notice of appeal (“NOA”) in the district 8 || court. Fed. R. App. P. 3(a)(1). The NOA must identify each appellant, the judgment or g || order or part thereof being appealed and name the court to which the appeal is taken. West 10 || v. United States, 853 F.3d 520, 521 (9th Cir. 2017) (listing requirements in Fed. R. App. P. 11. || 3(c) and noting that they are jurisdictional). Petitioner’s recent filing fails to satisfy these «= 12 || requirements, and therefore does not constitute a valid NOA. Furthermore, Rule E 13 || 4(a)(1)(A) of the Federal Rules of Appellate Procedure requires that a notice of appeal “be 14 || filed with the clerk of the district court within 30 days after the entry of the judgment or

15 || order appealed from.” Fed. R. App. P. 4(a)(1)(A) (implementing 28 U.S.C. § 2107(a)). A 16 || Since judgment was entered on March 14, 2022, the time for appealing the Court’s order 5 17 || denying the petition has long since passed.!

7 18 This order terminates Docket No. 38. 19 IT ISSO ORDERED. 20 || Dated: November 29, 2022 fouinfhacnan BETH LABSON FREEMAN 71 United States District Judge 22 Order Denying Motion for COA & Reopen PRO-SE\BLF\HC.20\00858Hedgepeth_deny-coa 23 24 Wi There is no indication that Petitioner seeks, or has ever sought, an extension of time to 95 || file a notice under Rule 4(a)(5), which allows a motion for an extension of time if the party requests it within thirty days of the expiration of the time to file the notice and shows 26 || excusable neglect or good cause. See Fed. R. App. P. 4(a)(5)(A). Rule 4(a)(5) requires a “formal motion” that, among other things, “explicitly request[s] an extension of time.” 97 || Malone v. Avenenti, 650 F.2d 569, 572 (9th Cir. 1988). Petitioner makes no such explicit request anywhere in his recent filing.