Gregory Bisel v. Ray Fisher, Jr., et al
| GREGORY EUGENE BISEL |
| RAY FISHER, Jr., Warden and SCOTT KERNAN, Secretary, California Department of Corrections and Rehabilitations |
| 23-15519 |
| April 7, 2023 |
| U.S. Court of Appeals, Ninth Circuit |
| Habeas Corpus |
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| Filing 4 Filed clerk order (Deputy Clerk: MCD): This courts April 24, 2023, order remanded this case to the district court with instructions for the district judge to consider appellants March 3, 2023, motion to extend time for appeal. On May 30, 2023, the district court granted appellants motion to extend time to file the notice of appeal under Federal Rule of Appellate Procedure 4(a)(5), and extended the deadline to file a notice of appeal, nunc pro tunc, to March 27, 2023. The district court construed a motion for extension of time filed by appellant in the district court on March 29, 2023 (ECF No. 99), as a notice of appeal, and further held that the notice of appeal was timely because its proof of service reflected that appellant mailed it on March 27, 2023. The district court overlooked that appellant is not entitled to the benefit of the prison mailbox rule because he is not in custody and did not use an institutions internal mail system to mail his notice of appeal. See Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 270 (1988). Because appellants notice of appeal was due by March 27, 2023, but was not filed until March 29, 2023, the record suggests that this court lacks jurisdiction over this request for a certificate of appealability. See 28 U.S.C. 2107(a), (c); Fed. R. App. P. 4(a)(1), (5). Within 21 days after this order, appellant must move for voluntary dismissal of this request for a certificate of appealability or show cause why it should not be dismissed for lack of jurisdiction. If appellant elects to show cause, appellees must file a response within 10 days after service of appellants memorandum. If appellant does not comply with this order, the Clerk will dismiss this request for a certificate of appealability pursuant to Ninth Circuit Rule 42-1. The Clerk will serve a copy of this order on the district judge. [12726762] (AF) [Entered: 06/01/2023 02:26 PM] |
| Filing 3 Received copy of District Court order filed on 05/30/2023. Order construing petitioner's motion for enlargement of time to file application for certificate of appealability as motion for enlargement of time to file notice of appeal and granting enlargement of time (ECF No. 97) Order construing motion for enlargment of time as notice of appeal (ECF No. 99) Order directing clerk of court to serve order on Ninth Circuit Court of Appeals. Accordingly, 1) The Court construes Petitioners motion, (ECF No. 97), as a motion for an extension of time to file a notice of appeal; 2) The Court grants Petitioner an extension of time nunc pro tunc to March 27, 2023, to file a notice of appeal; 3) The Court construes Petitioners motion for enlargement of time, (ECF No. 99), as a notice of appeal; and 4) The Clerk of Court is directed to serve this order on the Ninth Circuit Court of Appeals. IT IS SO ORDERED. [12725334] (RL) [Entered: 05/31/2023 10:17 AM] |
| Filing 2 Filed order (BARRY G. SILVERMAN and HOLLY A. THOMAS): The district court entered its judgment denying appellants 28 U.S.C. 2254 petition on January 26, 2023. Appellant filed a motion to extend time in the district court on March 3, 2023, which the magistrate judge construed as a motion to extend time for appeal under Federal Rule of Appellate Procedure 4(a)(5). On March 9, 2023, the magistrate judge granted the motion and extended the time for appeal until March 27, 2023. Appellant, who is not in custody, filed a second motion to extend of time on March 29, 2023, which the magistrate judge construed as a notice of appeal. This appeal was then opened. Because the parties in this case did not affirmatively consent to the magistrate judges authority, we remand this case to the district court with instructions for the district judge to consider appellants March 3, 2023, motion to extend time for appeal. See 28 U.S.C. 636(c); see also Columbia Record Productions v. Hot Wax Records, Inc., 966 F.2d 515, 516-17 (9th Cir. 1992) (holding that absent consent, a federal magistrate judge lacks authority to render a post-judgment decision that has a dispositive effect on the parties). If the district judge grants the motion to extend time, the district judge should also determine whether appellants March 29, 2023, filing should be deemed a timely notice of appeal or whether appellant must file a new notice of appeal within the proscribed deadline. See Fed. R. App. P. 4(a)(5)(C). The district court is requested to serve a copy of its decision on this court at its earliest convenience. The Clerk will send a copy of this order directly to the district judge. [12701727] (AF) [Entered: 04/24/2023 02:42 PM] |
| Filing 1 Open 9th Circuit docket: needs certificate of appealability. Date COA denied in DC: 01/26/2023. Record on appeal included: Yes. [12691387] (OC) [Entered: 04/07/2023 01:37 PM] |
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