Lindsey v. Hedgpeth
Filing
19
ORDER GRANTING PETITIONER'S MOTION TO EXTEND TIME TO FILE A NOTICE OF APPEAL;ORDER DENYING MOTION FOR THE APPOINTMENT OF COUNSEL ON APPEAL 17 (Illston, Susan) (Filed on 8/21/2012) (Additional attachment(s) added on 8/21/2012: # 1 Certificate/Proof of Service) (tfS, COURT STAFF).
<![CDATA[
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
United States District Court
For the Northern District of California
10
11
EDWARD LINDSEY,
No. C 11-0638 SI (PR)
Petitioner,
12
ORDER GRANTING PETITIONER’S
MOTION TO EXTEND TIME TO FILE
A NOTICE OF APPEAL;
v.
13
14
ANTHONY HEDGPETH,
15
Respondent.
ORDER DENYING MOTION FOR THE
APPOINTMENT OF COUNSEL ON
APPEAL
/
16
17
This is a closed federal habeas corpus action. The petition was denied and judgment was
18
entered in favor of respondent on July 10, 2012. Petitioner now moves for an extension of time
19
to file a notice of appeal, and to appoint counsel for purposes of his appeal. (Docket No. 17 and
20
18).
21
Petitioner’s motion for an extension of time is GRANTED. An appeal of right may be
22
taken only by filing a valid notice of appeal in the district court within the time allowed by Fed.
23
R. App. P. (“FRAP”) 4. See FRAP 3(a)(1). The notice of appeal must be filed within 30 days
24
after judgment is entered. See FRAP 4(a)(1). Relief from the deadline for filing a notice of
25
appeal may be obtained by a motion in the district court under FRAP 4(a)(5) (motion for an
26
extension of time) or 4(a)(6) (motion to reopen time to file appeal). FRAP 4(a)(5) allows a
27
motion for an extension of time if the party requests it within thirty days of the expiration of the
28
time to file the notice and shows an excusable neglect or good cause. Petitioner’s motion was
1
signed on August 7, 2012, and therefore is timely filed within the meaning of FRAP 4(a)(5).
2
(Though stamped as received by this Court on August 13, for purposes of the present motion the
3
Court assumes that petitioner put the motion in the prison mail the day he signed it and will use
4
that as the filing date under the prisoner mailbox rule. See generally Houston v. Lack, 487 U.S.
5
266, 276 (1988).) The Court also finds that petitioner has shown good cause.
6
“No extension under this rule 4(a)(5) may exceed 30 days after the expiration of the
7
prescribed time [viz., 30 days from the date of entry of judgment] or 14 days after the date when
8
the order granting the motion is entered, whichever is later.” FRAP 4(a)(5)(C). Here, that is 30
9
days from August 9, 2012. Accordingly, petitioner must file his notice of appeal on or before
United States District Court
For the Northern District of California
10
September 8, 2012.
11
Petitioner’s motion to appoint counsel for purposes of his appeal is DENIED. There is
12
no right to counsel in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th
13
Cir. 1986). However, 18 U.S.C. § 3006A(a)(2)(B) authorizes a district court to appoint counsel
14
to represent a habeas petitioner whenever “the court determines that the interests of justice so
15
require” and such person is financially unable to obtain representation. The decision to appoint
16
counsel is within the discretion of the district court, see Chaney v. Lewis, 801 F.2d 1191, 1196
17
(9th Cir. 1986), and should be granted only when exceptional circumstances are present. See
18
generally 1 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure § 12.3b at
19
383–86 (2d ed. 1994). Petitioner has not shown that there are exceptional circumstances
20
warranting appointment of counsel. Petitioner may of course ask the federal appellate court for
21
the appointment of counsel.
22
The Clerk shall terminate Docket Nos 17 and 18.
23
IT IS SO ORDERED.
24
DATED: August 21, 2012
SUSAN ILLSTON
United States District Judge
25
26
27
28
2
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
