Walter Linares v. Ken Clark
| WALTER RUMALDO LINARES |
| KEN CLARK, Warden |
| 23-55244 |
| March 16, 2023 |
| U.S. Court of Appeals, Ninth Circuit |
| Habeas Corpus |
Docket Report
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| Filing 3 Filed clerk order (Deputy Clerk: MCD): This courts March 17, 2023 order directed appellant to show cause why this request for a certificate of appealability (COA) should not be dismissed for lack of jurisdiction because it appears the notice of appeal was not filed or deposited for mailing in the prisons internal mail system within 30 days after entry of the district courts judgment on December 16, 2022, or within 30 days after entry of the district courts post-judgment order on January 13, 2023. See 28 U.S.C. 2107(a); Fed. R. App. P. 4(a)(1)(A), (c). Appellant has not filed a response to the courts March 17, 2023 order to show cause. However, a review of this courts records reflects that this court received the attached correspondence from appellant, dated February 25, 2023 and February 27, 2023, which appears to relate to this request for a COA. The correspondence attaches a prisoner mail log for appellant, and appears to claim that appellant submitted an earlier timely notice of appeal. Because the correspondence was received by this court prior to the opening of this request for a COA, it was not previously filed in this docket, No. 23-55244. Appellants correspondence is directly relevant to the order to show cause and addresses the timeliness of his notice of appeal. The Clerk will serve a copy of this order and the correspondence on appellees, who must file a response to the March 17, 2023 order to show cause within 14 days after the date of this order. [12714568] (OC) [Entered: 05/12/2023 09:32 AM] |
| Filing 2 Filed clerk order (Deputy Clerk: KB): The record suggests that this court may lack jurisdiction over this request for a certificate of appealability because the notice of appeal was not filed or deposited for mailing in the prisons internal mail system within 30 days after entry of the district courts judgment on December 16, 2022, or within 30 days after entry of the district courts post-judgment order on January 13, 2023. See 28 U.S.C. 2107(a); Fed. R. App. P. 4(a)(1)(A), (c). The record does not reflect that appellant has filed a motion in the district court to extend or reopen the time for appeal. See Fed. R. App. P. 4(a)(5), (6), and 26(b)(1). 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, a response may be filed 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. [12676197] (OC) [Entered: 03/17/2023 11:13 AM] |
| Filing 1 Open 9th Circuit docket: needs certificate of appealability. Date COA denied in DC: 12/16/2022. Record on appeal included: Yes. [12675818] (WL) [Entered: 03/16/2023 04:59 PM] |
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| Petitioner / appellant: WALTER RUMALDO LINARES | |
| Represented By: | Walter Rumaldo Linares |
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| Respondent / appellee: KEN CLARK, Warden | |
| Represented By: | Kenneth Charles Byrne |
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