Jose Antonio Galvez, Jr., Petitioner-appellant, v. Carl Nink, Respondent-appellee, 15 F.3d 1085 (9th Cir. 1994)

MEMORANDUM^** 

Jose Antonio Galvez, Jr., an Arizona state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas petition. We dismiss the appeal for lack of jurisdiction.

A notice of appeal from a district court's judgment denying a habeas petition must be filed within thirty days of the date of judgment. Fed. R. App. P. 4(a) (1); Malone v. Avenenti, 850 F.2d 569, 571 (9th Cir. 1988). The appellant may obtain an extension of time to file a notice of appeal, upon a showing of good cause or excusable neglect. Fed. R. App. P. 4(a) (5); Malone, 850 F.2d at 571. If the appellant seeks an extension of time after the initial thirty-day time period has expired, the appellant must file a formal motion. Fed. R. App. P. 4(a) (5); Malone, 850 F.2d at 571-72. District courts may not construe an untimely notice of appeal as a motion for extension of time. Pettibone v. Cupp, 666 F.2d 333, 335 (9th Cir. 1981). "The procedures set forth in rule 4 are strictly construed; there is no exception for prisoners proceeding pro se or for habeas corpus actions." Malone, 850 F.2d at 572.

Here, the district court entered the judgment dismissing Galvez's habeas petition on April 20, 1992. Galvez filed his notice of appeal on June 3, 1992, forty-four days after the date of judgment. Thus, Galvez failed to file a timely notice of appeal from the district court's judgment. See Fed. R. App. P. 4(a) (1); Malone, 850 F.2d at 571. In addition, Galvez failed to file a timely motion requesting an extension of time to file a notice of appeal. See Fed. R. App. P. 4(a) (5); Malone, 850 F.2d at 571-72. Accordingly, we lack jurisdiction to hear this appeal. See Malone, 850 F.2d at 572.

DISMISSED.