Hedgepeth v. Madden

Opinion

1 2 3 4 5 6 7 10 HASSON HEDGEPETH, 11 Case No. 20-cv-00858 BLF (PR) Petitioner, 12 ORDER DENYING MOTION FOR v. CERTIFICATE OF REOPEN

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. 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.