(HC) Godfrey v. Warden PBSP

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 JOSHUA MICHAEL GODFREY, Case No. 1:19-cv-01197-JLT-HBK (HC) 12 Petitioner, ORDER DIRECTING CLERK TO PROCESS NOTICE OF APPEAL 13 v. (Doc. No. 46) 14 WARDEN PBSP, 15 Respondent. [17] 18 This matter comes before the Court upon sua sponte review of the file. Petitioner Joshua 19 Michael Godfrey is a state prisoner who initiated this action by filing a pro se petition for writ of 20 habeas corpus under 28 U.S.C. § 2254 . (Doc. No. 1). On June 29, 2022, the undersigned entered 21 Findings and Recommendations recommending that the Petition be denied and the Court decline 22 to issue a certificate of appealability. (Doc. No. 44). On August 1, 2022, Petitioner filed a Notice 23 of Appeal accompanied by a Motion to Proceed In Forma Pauperis. (Doc. Nos. 45, 46). 24 Applying the mailbox rule given Petitioner’s incarcerated status, his Notice of Appeal and Motion 25 to Proceed In Forma Pauperis were constructively filed on July 12, 2022, the date Petitioner 26 signed the documents and stated he delivered them to correctional officials for mailing.1 On 27 August 2, 2022, the Court adopted the Findings and Recommendations and declined to issue a 28 1 Houston v. Lack, 487 U.S. 266 (1988). 1 certificate of appealability, and judgment was entered the same day. (Doc. Nos. 47, 48). As of 2 the date of this Order, the Clerk of Court has not processed the Notice of Appeal. 3 A magistrate judge’s findings and recommendations are not an appealable final order 4 absent consent from the parties under 28 U.S.C. § 636 (c). See Serine v. Peterson, 989 F.2d 371 , 5 372-73 (9th Cir. 1993). However, the Supreme Court has “has defined the circumstances under 6 which a premature appeal qualifies as a timely appeal” under Fed. R. App. P. 4(a)(2) as it “was 7 intended to protect the unskilled litigant who files a notice of appeal from a decision that he 8 reasonably but mistakenly believes to be a final judgment, while failing to file a notice of appeal 9 from the actual final judgment.” Kennedy v. Applause, Inc., 90 F.3d 1477, 1482-83 (9th Cir. 10 1996) (citing FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 276 (1991) 11 (“In our view, Rule 4(a)(2) permits a notice of appeal from a nonfinal decision to operate as a 12 notice of appeal from the final judgment only when a district court announces a decision that 13 would be appealable if immediately followed by the entry of judgment.”)). 14 Here, Petitioner filed the Notice of Appeal prematurely, as it was submitted before the 15 magistrate’s Findings and Recommendations were adopted by the Court. (Doc. No. 46). 16 However, the Notice of Appeal indicates Petitioner was appealing the “entry of judgment” 17 entered on June 29, 2022— the date the Findings and Recommendations were issued. (Doc. No. 18 44, 46). In light of Plaintiff’s pro se status, the Court presumes he is an unskilled litigant who 19 filed the Notice of Appeal under the “mistaken belief” that the Findings and Recommendations 20 were an appealable final judgment. See Boag v. MacDougall, 454 U.S. 364, 365 (1982) 21 (instructing federal courts to liberally construe the “inartful pleading[s]” of pro se litigants). 22 Whether Petitioner’s Notice of Appeal was filed prematurely or falls within the ambit of 23 Fed. R. App. P. 4(a)(2) is properly for the Court of Appeals. Thus, the Court will direct the Clerk 24 of Court to process the appeal and forward Petitioner’s motion to proceed on appeal to the Ninth 25 Circuit for handling as they deem appropriate. 26 //// 27 Accordingly, it is ORDERED: 28 The Clerk of Court shall process the Notice of Appeal (Doc. No. 46) and forward 1 | Petitioner’s Motion to Proceed In Forma Pauperis (Doc. No. 45) to the Ninth Circuit and 2 || terminate the Motion from the Court’s docket. [3] 4 Dated: _ January 17, 2023 ooo. Zh. fared Hack 5 HELENA M. BARCH-KUCHTA ‘ UNITED STATES MAGISTRATE JUDGE