Madrid v. Howell

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA Mariano Madrid, Case No.: 2:19-cv-01659-APG-NJK 5 Petitioner ORDER v. William Hutchings, et al., 8 Respondents

10 Petitioner Madrid’s appeal of my September 7, 2022, judgment denying his habeas petition has been remanded to this court for the limited purpose of ruling on Madrid’s October 20, 2022, motion to reopen the time for appeal. ECF No. 59. As recounted in the remand order, Madrid alleges he did not receive notice from the court that judgment had been entered and “that his family helped him obtain a copy of the district court’s order,” which he did not receive until October 13, 2022. Id. 16 Under Federal Rules of Appellate Procedure, the court may reopen the time for appeal if “the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry.” Fed. R. App. P. 4(a)(6). “Where a moving party makes an unchallenged assertion that he did not receive timely notice of judgment, and the other Rule 4(a)(6) conditions are not at issue, a district court errs in denying the motion to reopen based solely on the party's failure to learn independently of the entry of judgment.” United States v. Withers, 638 F.3d 1055, 1061–62 (9th Cir. 2011). ] I have no reason to question the veracity of Madrid’s claim. I also note Madrid has generally complied with my deadlines in litigating this case. In the interest of fairness, however, will provide the respondents an opportunity to oppose Madrid’s motion to reopen.

4 I THEREFORE ORDER that I will grant Madrid’s motion to reopen (ECF Nos. 57/59) 5] unless the respondents file an opposition within 10 days of the date of this order. If respondents 6]| file a timely opposition, I will allow 10 days for Madrid to file a reply before ruling on the 7|| motion.

8 Dated: December 12, 2022 US. District Judge Andrew P. Gordon 1]