Steve Garner v. M. Gutierrez
| STEVE J. GARNER |
| M. GUTIERREZ, Warden |
| 23-15937 |
| June 28, 2023 |
| U.S. Court of Appeals, Ninth Circuit |
| Habeas Corpus |
Docket Report
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| Filing 4 Filed order (MARY M. SCHROEDER, MARSHA S. BERZON and JOHN B. OWENS) A review of the record and appellants response to this courts July 6, 2023 order to show case demonstrates that this court lacks jurisdiction over this appeal because the June 26, 2023 notice of appeal was not filed or delivered to prison officials within 60 days after the dis trict courts judgment entered on February 23, 2023. See 28 U.S.C. 2107(b); United States v. Sadler , 480 F.3d 932, 937 (9th Cir. 2007) (requirement of timely notice of appeal is jurisdictional). Consequently, this appeal is dismissed for lack of jurisd iction. DISMISSED. [12776794] (WL) [Entered: 08/18/2023 10:50 AM] |
| Filing 3 Filed Appellant Steve J. Garner Inmate declaration of timely filing. Paper filing deficiency: None. [12764478] (HH) [Entered: 07/28/2023 03:37 PM] |
| Filing 2 Filed clerk order (Deputy Clerk: MCD): The district court judgment was entered on the docket on February 23, 2023. Appellants notice of appeal from that judgment was not dated, but was not filed until June 26, 2023. Thus, the notice of appeal was not filed within 30 days after the entry of the judgment. See 28 U.S.C 2107(a); Fed. R. App. P. 4(a)(1). Because appellant is a pro se prisoner, however, the notice of appeal is deemed filed when it was delivered to prison authorities for forwarding to the court. See Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, within 21 days after the date of this order, appellant must file with this court a declaration or notarized statement attesting to the date on which the notice of appeal was deposited in the institutions internal mail system and whether first-class postage was prepaid, or otherwise show cause why this appeal should not be dismissed for lack of jurisdiction. See Fed. R. App. P. 4(c)(1); Douglas v. Noelle, 567 F.3d 1103 (9th Cir. 2009). If appellant does not comply with this order, the Clerk will dismiss this appeal pursuant to Ninth Circuit Rule 42-1. The Clerk will serve a Form 33 Inmate Declaration of Timely Filing on appellant along with this order. [12749933] (CKP) [Entered: 07/06/2023 02:10 PM] |
| Filing 1 Open 9th Circuit docket: needs certificate of appealability. Date COA denied in DC: 02/23/2023. Record on appeal included: Yes. [12744709] (JMR) [Entered: 06/28/2023 11:28 AM] |
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| Petitioner / appellant: STEVE J. GARNER | |
| Represented By: | Steve J. Garner |
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| Respondent / appellee: M. GUTIERREZ, Warden | |
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