Page v. Houser

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
EDWARD JOSEPH PAGE,
Petitioner,
vs.
EARL HOUSER, Superintendent, Goose
Creek Correctional Center,
Respondent.
No. 3:20-cv-00169-JKS
ORDER
[Re: Motion at Docket No. 18]
This Court denied Edward Joseph Page, a state prisoner proceeding pro se, habeas relief
and a certificate of appealability on December 17, 2020. Docket Nos. 16, 17. Page now moves
for a 60-day extension of time to file a notice of appeal, and renews his request for the
appointment of counsel. Docket No. 18.
A notice of appeal from a judgment rendered under 28 U.S.C. § 2254 must be filed
within 30 days after entry of the judgment. See FED . R. APP . P. 4(a)(1)(A). Because this Court
entered final judgment on December 17, 2020, Page’s notice of appeal was due on January 18,
2021. The record reflects that Page submitted his extension request on January 27, 2021. 1
1 This Court is obligated to give Page the benefit of the “mailbox rule” and assume
that he “filed” his petition on the date he signed it and presumably turned it over to prison
authorities for mailing to this Court. See Anthony v. Cambra, 236 F.3d 568, 574-75 (9th Cir.
2000) (citing Houston v. Lack, 487 U.S. 266, 275 (1988)).
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Federal Rule of Civil Procedure 4(a)(5) provides that the Court may extend the time to
file a notice of appeal when two conditions are met. First, the motion seeking an extension must
be made no later than 30 days after the expiration of the time originally prescribed by Rule 4(a)
(in this case, the request for an extension must be made within 60 days after the judgment was
entered because the time originally prescribed by Rule 4(a) is 30 days). FED . R. APP . P.
4(a)(5)(A)(i). Second, the party seeking the extension must show “excusable neglect or good
cause.” FED . R. APP . P. 4(a)(5) (A)(ii). In any event, no extension under Rule 4(a)(5) may
exceed 30 days after the expiration of the time originally prescribed by Rule 4(a), or 14 days
after the date when the order granting the motion is entered, whichever is later. FED . R. APP . P.
4(a)(5)(C).
Where, as here, the court is presented with a timely motion to extend the time to file a
notice of appeal, the court has “wide discretion as to whether to excuse” the delay in filing the
notice of appeal. Pincay v. Andrews, 389 F.3d 853, 859 (9th Cir. 2004) (en banc). Page
contends that he was unable to timely file his notice of appeal because he recently recovered
from COVID-19 and still suffers from side effects. Docket No. 18 at 2.
The Court applies the “excusable neglect” standard “in situations in which there is fault;
in such situations, the need for an extension is usually occasioned by something within the
control of the movant.” FED . R. APP . P. 4(a)(5)(A)(ii), advisory committee’s note, 2002
amendment. The court weighs four factors to determine whether excusable neglect has been
shown, including:
(1) the danger of prejudice to the non-moving party, (2) the length of delay and its
potential impact on judicial proceedings, (3) the reason for the delay, including whether it
was within the reasonable control of the movant, and (4) whether the moving party’s
conduct was in good faith.
Pincay, at 855.
The Court finds that the factors to be considered when applying the excusable neglect
standard weigh in favor of Page and will therefore grant the extension request. The Court also
notes that the filing at Docket No. 18 appears to contain all the information required in a notice
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of appeal. The notice must include “the party or parties taking the appeal by naming each one in
the caption or body of the notice,” “the judgment, order, or part thereof being appealed,” and
“the court to which the appeal is taken.” FED . R. APP . P. 3(c)(1). Because the submission at
Docket No. 18 contains that information, the Court will further construe Docket No. 18 as a
timely-filed notice of appeal.
The Court notes, however, that any further relief, including the appointment of counsel
and an application for a certificate of appealability, must be requested from the Ninth Circuit
Court of Appeals. As this Court explained when denying Page’s initial request for Court-
appointed counsel, Docket No. 5, although this Court is not unmindful of the plight of
unrepresented state prisoners in federal habeas proceedings, particularly given Page’s dyslexia
and current COVID-related health issues, there is no constitutional right to counsel in federal
habeas proceedings. See Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (citing Coleman v.
Thompson, 501 U.S. 722, 756-57 (1991)). Importantly, now that Page has initiated his appeal of
this Court’s decision, the entire underlying record of his case, including the counseled briefs
filed on his behalf in the state courts, will be transmitted to the Ninth Circuit for its review in
determining whether to issue a certificate of appealability that would allow Page to continue his
appeal. The Ninth Circuit may issue a certificate of appealability only if, after reviewing the
record, it believes that Page has made “a substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), and
that “reasonable jurists could debate whether . . . the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to proceed
further,” Miller-El, 537 U.S. at 336 (citation and internal quotation marks omitted).
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IT IS THEREFORE ORDERED THAT the Motion at Docket No. 18 is GRANTED
IN PART AND DENIED IN PART. The Request for an Extension of Time is GRANTED,
and the filing at Docket No. 18 shall be construed as a timely-filed Notice of Appeal. The
Request for the Appointment of Counsel is DENIED. As the Notice of Appeal divests this
Court of jurisdiction over Page’s case, any further requests for relief shall be directed to the
Ninth Circuit Court of Appeals.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability as to this Order. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705
(2004) (“To obtain a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of
reason could disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to proceed
further.’” (quoting Miller-El, 537 U.S. at 327)). Any further request for a Certificate of
Appealability must also be addressed to the Ninth Circuit Court of Appeals. See FED . R. APP . P.
22(b); 9TH CIR . R. 22-1.
Dated: February 2, 2021.
s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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