Torricellas v. Davidson

279 F. App'x 504

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 22, 2008
• Docket: No. 06-56499
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Theresa Annette Torricellas appeals pro se from the district court’s denial of her motion for reconsideration of its order denying her 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We review de novo, Henderson v. Lampert, 396 F.3d 1049, 1052 (9th Cir.2005), and we affirm.

We lack jurisdiction to entertain any contention relating to the district court’s August 2, 2006, judgment denying Torricellas’s 28 U.S.C. § 2254 petition because she did not file her notice of appeal until October 16, 2006, well after the 30-day period for filing a notice of appeal had expired. See Fed. R.App. P. 4(a)(1)(A) (establishing a 30-day period for filing a notice of appeal in a civil case). Because Torricellas filed her motion for reconsideration 11 court days after the district court entered judgment, the motion did not toll the time for filing a notice of appeal. See Fed. R.App. P. 4(a)(4); Fiester v. Turner, 783 F.2d 1474, 1475 (9th Cir.1986). Respondent’s failure to object to the untimely filing of the motion itself does not excuse the untimely filing of her notice of appeal of the August 2, 2006, judgment. See id. at 1475-76. Furthermore, the Supreme Court has abolished the “unique circumstances” exception to the filing deadline for notices of appeal. See Bowles v. Russell, - U.S. -, 127 S.Ct. 2360, 2366, 168 L.Ed.2d 96 (2007). We reject Torricellas’ contention that her September 8, 2006 motion to the expand the record should be construed as a motion for an extension of time. See Fed. R.App. P. 4(a)(5); Malone v. Avenenti, 850 F.2d 569, 571-72 (9th Cir.1988).

Finally, because Torricellas’s motion for reconsideration sought only to revisit the district court’s denial on the merits of her claims for relief, the motion should be treated as a successive § 2254 petition. See Gonzalez v. Crosby, 545 U.S. 524, 532, 538, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). Because Torricellas did not obtain authorization to file a successive § 2254 petition, the district court lacked jurisdiction to consider the motion. See 28 U.S.C. § 2244(b)(3); Gonzalez, 545 U.S. at 538, 125 S.Ct. 2641.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.