Timothy Malone v. John Avenenti, Warden Robert Corbin, Attorney General

850 F.2d 569 11 Fed.R.Serv.3d 791 Timothy MALONE, Petitioner-Appellant, v. John AVENENTI, Warden; Robert Corbin, Attorney General, Respondents-Appellees. No. 86-15011. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 12, 1988. Submission Withdrawn March 1, 1988. Resubmitted March 23, 1988. Decided June 28, 1988. Howard A. Kashman, Tucson, Ariz., for petitioner-appellant. Greg A. McCarthy, Asst. Atty. Gen., Dept. of Law, State of Ariz., Phoenix, Ariz., for respondents-appellees. Appeal from the United States District Court for the District of Arizona. Before ALDISERT, * WALLACE and SCHROEDER, Circuit Judges. WALLACE, Circuit Judge: 1 Malone seeks to appeal the dismissal by the district court of his petition for a writ of habeas corpus. We do not reach the merits of his appeal because Malone failed to perfect his appeal under rule 4(a) of the Federal Rules of Appellate Procedure. 2 * The judgment denying Malone's petition was entered on September 24, 1986. No appeal was taken within the 30-day period prescribed by rule 4(a)(1) of the Federal Rules of Appellate Procedure. On November 14, 1986, the district court received a letter from Malone inquiring whether…

Malone seeks to appeal the dismissal by the district court of his petition for a writ of habeas corpus. We do not reach the merits of his appeal because Malone failed to perfect his appeal under rule 4(a) of the Federal Rules of Appellate Procedure.

I

The judgment denying Malone’s petition was entered on September 24, 1986. No appeal was taken within the 30-day period prescribed by rule 4(a)(1) of the Federal *571 Rules of Appellate Procedure. On November 14, 1986, the district court received a letter from Malone inquiring whether Malone had a right to appeal and stating that he had been unable to communicate with his “jailhouse lawyer.” The district court treated the letter as a motion for extension of time for filing an appeal, and entered an order granting the “motion” on November 26, 1986. In this order, the district court also treated Malone’s letter as a notice of appeal, and the letter was filed as such on November 26, 1986.

On August 28, 1987, respondents Aven-enti, et al. (State) filed a motion to dismiss Malone’s appeal on the grounds that the appeal had not been timely filed under rule 4(a)(1), and that no motion to extend the time for taking an appeal had been filed…

concurring in the result.

I cannot join in the majority’s criticism of the district court for construing appellant’s letter as a motion for extension of time. The 1979 amendments to the rales require that appellants ask for an extension of tíme once 30 days has elapsed since judgment. District courts therefore may no longer construe an untimely notice of appeal as a motion for extension of time. Pettibone v. Cupp, 666 F.2d 333, 335 (9th Cir.1981); Shah v. Hutto, 722 F.2d 1167, 1168 (4th Cir.1983) (en banc), cert. denied, 466 U.S. 975 , 104 S.Ct. 2354 , 80 L.Ed.2d 827 (1984); United States ex rel. Leonard v. O’Leary, 788 F.2d 1238, 1240 (7th Cir.1986) (per curiam). But the district court could reasonably have construed appellant’s letter as a motion for extension of time given the liberal construction generally given pro se documents. Haines v. Kerner, 404 U.S. 519, 520 , 92 S.Ct. 594, 595 , 30 L.Ed.2d 652 , reh’g denied, 405 U.S. 948 , 92 S.Ct. 963 , 30 L.Ed.2d 819 (1972). See Wilborn v. Escalderon, 789 F.2d 1328, 1330 (9th Cir.1986); Davis v. Dept. of Corrections, 446 F.2d 644, 645 (9th Cir.1971); Curtis Gallery & Library, Inc. v. United States, 388 F.2d 358, 360 (9th…