Leon v. Clark
Filing
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ORDER Striking Petitioner's 23 Motion, signed by Magistrate Judge Dennis L. Beck on 6/15/11. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CRAIG CHRISTOPHER LEON,
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Petitioner,
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v.
KEN CLARK, Warden
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Respondent.
1:08-CV-1979 HC DLB
ORDER STRIKING PETITIONER’S
MOTION
(Doc. No. 23)
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BACKGROUND
On August 6, 2010, this Court issued an order denying Craig Christopher Leon’s (hereinafter
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“Petitioner”) petition for a writ of habeas corpus and denied a certificate of appealability. See Doc.
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No. 21. On August 6, 2010, the Court entered judgment to that effect. See Doc. No. 22. The
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Court’s Electronic Case File (“ECF”) system reflects that the Court served Petitioner a copy of the
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August 6, 2010 order and judgment by mail on August 6, 2010 at the CSP-Substance Abuse Training
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Facility in Corcoran, California (“CSP”).1
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On February 11, 2011, the Clerk’s Office for the Eastern District of California received an
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undated and unsigned letter from Petitioner in which he contended that his due process rights were
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violated because he did not receive a copy of the order denying his petition and because he did not
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get an opportunity to file objections or permission to file an appeal. On April 21, 2011, the Clerk’s
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Office docketed Petitioner’s letter as a Motion to Reopen the File to File an Appeal. See Doc. No.
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23. Petitioner requests leave on extenuating circumstances to respond to the August 6, 2010 Court’s
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The Court notes that Petitioner appears to currently reside at CSP as his most recent motion
listed his address at CSP. See Doc. No. 23.
U .S. D istrict C ourt
E. D . C alifornia
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order. Id.
The Court construes Petitioner’s motion as a motion for an extension of time to file a notice
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of appeal as Petitioner has not timely filed a notice of appeal and is not entitled to file objections.
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Here, the parties in this case voluntarily consented to have a United States Magistrate Judge
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adjudicate the entire case and order the entry of a final judgment pursuant to 28 U.S.C. § 636(c) and
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Fed. R. Civ. P. 73. See Doc. No. 9, 13.
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DISCUSSION
I.
Petitioner’s Claim
Petitioner appears to be alleging that he did not receive a copy of the Court’s August 6, 2010
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order. See Doc. No. 23 at line 17. Petitioner also contends that a prison floor officer misplaced
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Petitioner’s paperwork concerning his writ with another inmate’s property and that state authorities
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lost Petitioner’s “copies.”2 See Doc. No. 23 at 1:24-25 and 2:3-4. Petitioner requests additional time
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to respond the Court’s August 6, 2010 Order.
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II.
Analysis
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A. Fed. R. Civ. P. 11(a)
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Petitioner failed to sign or date his motion for an extension of time to file a notice of appeal.
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A court must strike an unsigned paper unless the omission is promptly corrected after being called to
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the party’s attention. See Fed. R. Civ. P. 11(a). Accordingly, the Court strikes Petitioner’s motion.
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Petitioner is granted an opportunity to file a motion that complies with Rule 11 within twenty days
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(20) of service of this order. Petitioner’s motion must also comply with the additional requirements
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set forth below in Section B.
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B. Fed. R. App. P. 4
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An appeal from the denial of a habeas petition is considered a “civil” matter and thus subject
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to the time limitations set forth in Rule 4 of the Federal Rules of Appellate Procedure. A timely
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notice of appeal is mandatory and jurisdictional. See Browder v. Dir. Dep’t of Corr., 434 U.S. 257,
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Petitioner does not describe specifically what documents were lost by the state.
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264 (1978); Malone v. Aventi, 850 F.2d 569, 571 (9th Cir. 1988). The district court does not have
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jurisdiction to grant a motion to reopen the time to file an appeal which is not filed within the rule's
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time constraints. Vahan v. Shalala, 30 F.3d 102, 103 (9th Cir.1994).
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Rule 4(a)(1)(A) requires that a notice of appeal be filed within 30 days after the district court
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enters judgment where, as here, the United States is not a party. Fed. R. App. P. 4(a)(1)(A). Here,
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the Court entered judgment on August 6, 2010. See Doc. No. 22. Petitioner did not file a timely
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notice of appeal in this matter. The district court may reopen the time to file an appeal for a period
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of 14 days after the date when its order to reopen is entered, but only if all the following conditions
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are satisfied:
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(A) the court finds that the moving party did not receive notice under Federal Rule of Civil
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Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days
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after
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(B) the motion is filed within 180 days after the judgment or order is entered or within 14
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days after the moving party receives notice under Federal Rule of Civil Procedure 77 of the
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entry, whichever is earlier; and
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(C) the court finds that no party would be prejudiced.
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Fed. R. App. P. 4(a)(6).
In his motion, Petitioner alleges that he did not receive a copy of the Court’s August 6, 2010
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Order and that the state authorities lost his “copies.” The ECF system reflects that the Court served
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Petitioner a copy of the August 6, 2010 order and judgment by mail on August 6, 2010 at CSP.
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Based on Petitioner’s current explanation, it is unclear to the Court whether Petitioner is alleging that
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he never received the Court’s August 6, 2010 Order or whether he did receive the order but prison
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officials lost the order. Petitioner does not state whether he received notice of the entry of the
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judgment. In order for the Court to determine whether it has jurisdiction to grant a motion to reopen
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the time to file an appeal, Petitioner must inform the Court when he received notice of the entry of
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judgment and the Court’s August 6, 2010 order.
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U .S. D istrict C ourt
E. D . C alifornia
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ORDER
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Petitioner’s motion for an extension of time to file a notice of appeal is stricken for
failure to comply with Fed. R. Civ. P. 11(a); and
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Petitioner may file a motion for an extension of time that complies with the
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requirements of this order and Rule 11(a) within Twenty (20) days of service of this
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order.
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IT IS SO ORDERED.
Dated:
June 15, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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