United States v. Craig Morgenstern

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 19, 2021
• Docket: 21-30007
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-30007

Plaintiff-Appellee, D.C. No. 2:14-cr-00161-WFN-1

v. MEMORANDUM* CRAIG ALLEN MORGENSTERN,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Wm. Fremming Nielsen, District Judge, Presiding

Submitted November 8, 2021**

Before: CANBY, TASHIMA, and MILLER, Circuit Judges.

Craig Allen Morgenstern appeals pro se from the district court’s order

denying his “Request for Injunction.” We dismiss the appeal as untimely.

Morgenstern’s motion sought the return of personal property. Thus, it was

in effect a motion under Federal Rule of Criminal Procedure 41(g) and subject to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). the 60-day appeal deadline in Federal Rule of Appellate Procedure 4(a)(1)(B). See

United States v. Martinson, 809 F.2d 1364, 1367 (9th Cir. 1987). The district court

denied Morgenstern’s motion on October 22, 2020, and his notice of appeal was

delivered to prison authorities on January 4, 2021, 74 days after entry of the order.

See Houston v. Lack, 487 U.S. 266, 270-72 (1988) (notice of appeal by a pro se

prisoner is considered filed for purposes of Rule 4(a)(1) when it is delivered to

prison authorities for forwarding to the court). Although Morgenstern’s notice of

appeal requested an extension of time to appeal because of COVID-19 restrictions

at his prison, that filing does not constitute a proper motion for an extension of

time. See Malone v. Avenenti, 850 F.2d 569, 572 (9th Cir. 1988) (Rule 4(a)(5)

requires a formal motion for extension of time to appeal); Pettibone v. Cupp, 666

F.2d 333, 335 (9th Cir. 1981) (Rule 4(a)(5) expressly requires filing of separate

motion for extension of time and language of Rule precludes court from remanding

on theory that untimely notice of appeal might be considered motion for extension

of time). Therefore, we dismiss this untimely appeal for lack of jurisdiction. See

United States v. Sadler, 480 F.3d 932, 937 (9th Cir. 2007); see also Bowles v.

Russell, 551 U.S. 205, 214 (2007) (court lacks authority to create equitable

exceptions to jurisdictional requirement of a timely notice of appeal).

Appellee’s motion to supplement the record is denied.

DISMISSED.

2 21-30007