Filed: Aug. 30, 2018
Latest Update: Aug. 30, 2018
Summary: ORDER [Re: Motions at Docket Nos. 25, 26] JAMES K. SINGLETON, JR. , Senior District Judge . This Court denied Elisha A. Howard, a state prisoner proceeding pro se, habeas relief and a certificate of appealability ("COA") on July 26, 2018. Docket Nos. 22, 23. Howard timely filed a notice of appeal with this Court dated August 23, 2018. Docket No. 24. At Docket No. 25, Howard moves for leave to appeal in forma pauperis. As this Court has already granted Howard leave to proceed in forma
Summary: ORDER [Re: Motions at Docket Nos. 25, 26] JAMES K. SINGLETON, JR. , Senior District Judge . This Court denied Elisha A. Howard, a state prisoner proceeding pro se, habeas relief and a certificate of appealability ("COA") on July 26, 2018. Docket Nos. 22, 23. Howard timely filed a notice of appeal with this Court dated August 23, 2018. Docket No. 24. At Docket No. 25, Howard moves for leave to appeal in forma pauperis. As this Court has already granted Howard leave to proceed in forma ..
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ORDER
[Re: Motions at Docket Nos. 25, 26]
JAMES K. SINGLETON, JR., Senior District Judge.
This Court denied Elisha A. Howard, a state prisoner proceeding pro se, habeas relief and a certificate of appealability ("COA") on July 26, 2018. Docket Nos. 22, 23. Howard timely filed a notice of appeal with this Court dated August 23, 2018. Docket No. 24.
At Docket No. 25, Howard moves for leave to appeal in forma pauperis. As this Court has already granted Howard leave to proceed in forma pauperis, Docket No. 6, it is unnecessary for him to obtain further authorization from this Court, see FED. R. APP. P. 24(a)(3). Howard also moves for an extension of time to file a notice of appeal. Docket No. 26. The filing suggests that Howard's submission at Docket No. 24 would not be received by the Court by August 26, 2018, and thus would be untimely because of a delay in receiving his prisoner account statement, which he attached to the in forma pauperis motion he simultaneously filed. Id. at 2. However, this Court is obligated to give Howard the benefit of the "mailbox rule" and assume that he "filed" his notice of appeal on the date he signed it and presumably turned it over to prison authorities to mail 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)). Accordingly, as noted above, the Court construes the notice of appeal as timely-filed in this Court on August 23, 2018.
Howard's extension request also asks for "an order extending the time for appeal to the United States Court of Appeals for the Ninth Circuit to and including [the] date of 9/26/18." Docket No. 26 at 1. Because this Court has already denied Howard a COA, to proceed with an appeal, he must request and obtain a COA from the Ninth Circuit Court of Appeals. To the extent he seeks any relief with respect to the deadline for requesting a COA from the Ninth Circuit, such relief must be requested directly to that court.
IT IS THEREFORE ORDERED THAT the motion at Docket No. 25 to proceed in forma pauperis on appeal is DENIED as moot.
IT IS FURTHER ORDERED THAT the motion at Docket No. 26 for an extension of time to file a notice of appeal in this Court is DENIED as moot.
