Michael Walker, II v. P.D. Brazelton

Michael Walker, II v. P.D. Brazelton

Petitioner / Appellant:	MICHAEL E. WALKER II
Respondent / Appellee:	P.D. BRAZELTON
Case Number:	23-15153
Filed:	February 3, 2023
Court:	U.S. Court of Appeals, Ninth Circuit
Nature of Suit:	Habeas Corpus

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This docket was last retrieved on March 10, 2023. A more recent docket listing may be available from PACER.

Date Filed	Document Text
March 10, 2023	Filing 2 Filed order (JACQUELINE H. NGUYEN and BRIDGET S. BADE) These related appeals are from (1) the district courts August 4, 2021, order denying appellants Fed. R. Civ. P. 60(b) motion, and (2) the district courts December 15, 2022, order declining to treat appellants objection served on August 31, 2021 (and filed on September 3, 2021), to the August 4, 2021, order as a tolling motion pursuant to Fed. R. App. P. 4(a)(4). We disagree with the district courts conclusion that appellants August 31, 2021, filing did not qualify as one of the listed motions that tolls the time for appeal under Fed. R. App. P. 4(a)(4). Appellants pro se objection sought reconsideration under Fed. R. Civ. P. 60(b) and was deposited for mailing within 28 days of the August 4, 2021, order. See Fed. R. App. P. 4(a)(4)(vi). Because we conclude that the filing qualified as a tolling motion, appellants notice of appeal filed in the district court on September 27, 2021 did not become effective until the district court addressed appellants objection in its December 15, 2022, order. See id. at 4(a)(4)(B). Appellant then filed a second notice of appeal on January 17, 2023. Both notices of appeal were timely filed from the post-judgment orders. See Fed. R. App. P. 4(a)(1), (4). Nevertheless, the requests for a certificate of appealability are denied because appellant has not shown that jurists of reason would find it debatable whether the district court abused its discretion in denying the Rule 60(b) motion. See United States v. Winkles, 795 F.3d 1134, 1143 (9th Cir. 2015); see also 28 U.S.C. 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Lynch v. Blodgett, 999 F.2d 401, 403 (9th Cir. 1993) (order). Any pending motions are denied as moot. DENIED. [12671807] [21-16583, 23-15153] (JMR) [Entered: 03/10/2023 03:05 PM]
February 3, 2023	Filing 1 Open 9th Circuit docket: needs certificate of appealability. Date COA denied in DC: 12/15/2022. Record on appeal included: Yes. [12645897] (JMR) [Entered: 02/03/2023 02:18 PM]

Date Filed

Document Text

March 10, 2023

Filing 2 Filed order (JACQUELINE H. NGUYEN and BRIDGET S. BADE) These related appeals are from (1) the district courts August 4, 2021, order denying appellants Fed. R. Civ. P. 60(b) motion, and (2) the district courts December 15, 2022, order declining to treat appellants objection served on August 31, 2021 (and filed on September 3, 2021), to the August 4, 2021, order as a tolling motion pursuant to Fed. R. App. P. 4(a)(4). We disagree with the district courts conclusion that appellants August 31, 2021, filing did not qualify as one of the listed motions that tolls the time for appeal under Fed. R. App. P. 4(a)(4). Appellants pro se objection sought reconsideration under Fed. R. Civ. P. 60(b) and was deposited for mailing within 28 days of the August 4, 2021, order. See Fed. R. App. P. 4(a)(4)(vi). Because we conclude that the filing qualified as a tolling motion, appellants notice of appeal filed in the district court on September 27, 2021 did not become effective until the district court addressed appellants objection in its December 15, 2022, order. See id. at 4(a)(4)(B). Appellant then filed a second notice of appeal on January 17, 2023. Both notices of appeal were timely filed from the post-judgment orders. See Fed. R. App. P. 4(a)(1), (4). Nevertheless, the requests for a certificate of appealability are denied because appellant has not shown that jurists of reason would find it debatable whether the district court abused its discretion in denying the Rule 60(b) motion. See United States v. Winkles, 795 F.3d 1134, 1143 (9th Cir. 2015); see also 28 U.S.C. 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Lynch v. Blodgett, 999 F.2d 401, 403 (9th Cir. 1993) (order). Any pending motions are denied as moot. DENIED. [12671807] [21-16583, 23-15153] (JMR) [Entered: 03/10/2023 03:05 PM]

February 3, 2023

Filing 1 Open 9th Circuit docket: needs certificate of appealability. Date COA denied in DC: 12/15/2022. Record on appeal included: Yes. [12645897] (JMR) [Entered: 02/03/2023 02:18 PM]

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Petitioner / appellant: MICHAEL E. WALKER II
Represented By:	Michael E. Walker II
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Respondent / appellee: P.D. BRAZELTON
Represented By:	Michael David Dolida
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