John Hays v. J. Hamlet

MEMORANDUM

Petitioner John R. Hays appeals from the district court’s denial of his Federal Rule of Civil Procedure 60(b) motion as an unauthorized successive habeas petition. We dismiss the appeal for lack of jurisdiction due to an untimely notice of appeal.

A habeas corpus action is considered a “civil” matter and therefore is subject to the time limitations set forth in Federal Rule of Appellate Procedure 4(a). Malone v. Avenenti, 850 F.2d 569, 571 (9th Cir.1988). Under Rule 4(a)(1)(A), a notice of appeal in a civil case must be filed “within 30 days after entry of the judgment or order appealed from.” “The 30-day time limit of Rule 4(a) is mandatory and jurisdictional.” Pettibone v. Cupp, 666 F.2d 333, 334 (9th Cir.1981). Appeals that are not timely filed “ ‘must be dismissed for want of jurisdiction.’ ” Bowles v. Russell, 551 U.S. 205, 213 , 127 S.Ct. 2360 , 168 L.Ed.2d 96 (2007).

The district court denied Hays’ Rule 60(b) motion in an order entered on August 10, 2012. Hays’ notice of appeal was delivered to prison authorities for forwarding on October 3, 2012, more than thirty days after the order was entered. Cf. Houston v. Lack, 487 U.S. 266, 270 , 108 S.Ct. 2379, 101…