Opinion
No. CR S-02-0213-MCE-CMK, CIV S-06-2409-MCE-CMK.
February 1, 2008
ORDER
Movant, a federal prisoner proceeding pro se, brings this motion to correct or set aside a criminal judgment pursuant to 28 U.S.C. § 2255. Pending before the court is movant' request for a certificate of appealability (Doc. 336 in the criminal docket), filed with his notice of appeal on January 22, 2002.
Before movant can appeal this decision, a certificate of appealability must issue under 28 U.S.C. § 2253(c). See Fed.R.App.P. 22(b); see also 28 U.S.C. § 2255. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. Fed.R.App.P. 22(b).
The timely filing of a notice of appeal is a jurisdictional requirement. See Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984). The time limit for filing a notice of appeal following denial of a motion under 28 U.S.C. § 2255 is thirty days. See Rule 11 of the Federal Rules Governing Section 2255 Proceedings;see also Fed.R.App.P. 4(a). Movant's notice of appeal in this action was filed more than thirty days after entry of the order denying the motion. It is, therefore, untimely and cannot provide the appellate court with jurisdiction. The issuance of a certificate of appealability cannot vest the court of appeals with jurisdiction if jurisdiction is not proper in that court.Cf. Hayward v. Britt, 572 F.2d 1324, 1325 (9th Cir. 1978) (addressing issuance of a certificate of probable cause). Because movant's notice of appeal is untimely, the court declines to issue a certificate of appealability.
Accordingly, IT IS HEREBY ORDERED that movant's request for a certificate of appealability is denied.