Speers v. Shinn

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Phillip Gregory Speers, No. CV 22-00172-PHX-JAT 10 Petitioner, 11 v. ORDER 12 David Shinn, et al., 13 Respondents.

14 15 On March 8, 2023, Petitioner filed a motion for extension of time to file a motion 16 for certificate of appealability. (Doc. 37). This Court denied a certificate of appealability 17 in its ruling on the petition in this case. (Doc. 35). Following the Court of Appeals lead 18 on liberal construction, the Court will interpret this filing as a motion for extension of time 19 to file a notice of appeal. 20 Specifically, the Court of Appeals in similar circumstances stated: 21 On August 1, 2012, Brown delivered a motion seeking “an extension of time to file his Certificate of Appealability” to prison officials for filing. 22 Construing Brown’s pro se motion liberally, as we must, we interpret this filing as a motion for extension of time to file a [Notice of Appeal (“NOA”)] 23 brought pursuant to Federal Rule of Appellate Procedure 4(a)(5). Rule 4(a)(5) permits a district court to extend the time to file a NOA if a party so 24 moves within 30 days of the expiration of the [30]–day clock, but only permits the district court to extend the deadline to 1) 30 days after the close 25 of the NOA period…, or 2) 14 days after the date when its order granting the 26 motion to extend is entered—whichever is later. This request for an extension cannot itself be construed as a NOA because it did not specify the order or 27 judgment from which Brown planned to appeal, or the court to which an appeal would be taken. Fed. R. App. P. 3(c). [footnote omitted] 28 1 United States v. Brown, 626 F. App’x 688, 690 (9th Cir. 2015). 2 Thus, what Petitioner in this case filed is not construed as a notice of appeal. But it 3 is construed as a motion for extension of time to file a notice of appeal. 4 An appeal “from a district court to a court of appeals may be taken only by filing a 5 notice of appeal with the district clerk.” Fed. R. App. P. 3(a)(1). The notice of appeal “must 6 be filed with the district clerk within 30 days after the judgment or order appealed from.” 7 Fed. R. App. P. 4(a)(1)(A). As Petitioner notes, his notice of appeal is due by March 10, 8 2023. This Court may extend this deadline for up to 30 days if the motion for extension of 9 time is filed before the original 30-days expires. See Fed. R. App. P. 4(a)(5)(C). 10 The Federal Rules of Appellate Procedure permit the district court to extend the 11 time for filing a notice of appeal if the moving party shows excusable neglect or good 12 cause. Fed. R. App. P. 4(a)(5)(A). If the motion is filed before the expiration of the original 13 30-days to appeal, as it was in this case, the motion may be ex parte. Fed. R. App. P. 14 4(a)(5)(B). Further, the advisory committee notes indicate that the “good cause” standard 15 is applicable to motions for extension of time filed within the initial 30-day period for filing 16 a notice of appeal. Fed. R. App. P. 4(a)(5) Advisory Committee’s Notes to 1979 17 Amendment. 18 The Court finds Petitioner has shown good cause for his requested extension; 19 namely, Petitioner needs additional time to complete his research regarding seeking a 20 certificate of appealability before the Court of Appeals. Thus, this Court will grant the 21 requested 30-day extension. Petitioner is cautioned that this Court does not have authority 22 to grant any further extensions. 23 Based on the foregoing, 24 / / / 25 / / / 26 / / / 27 / / / 28 1 IT IS ORDERED that Petitioner’s motion (Doc. 37) (construed as a motion for extension of time to file a notice of appeal) is granted; the deadline to file a notice of appeal is extended 30 days from the original deadline. 4 Dated this 9th day of March, 2023. 5

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8 James A. Teilborg Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-