United States v. Craig Morgenstern ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-30007
Plaintiff-Appellee, D.C. No. 2:14-cr-00161-WFN-1
v.
MEMORANDUM*
CRAIG ALLEN MORGENSTERN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, District Judge, Presiding
Submitted November 8, 2021**
Before: CANBY, TASHIMA, and MILLER, Circuit Judges.
Craig Allen Morgenstern appeals pro se from the district court’s order
denying his “Request for Injunction.” We dismiss the appeal as untimely.
Morgenstern’s motion sought the return of personal property. Thus, it was
in effect a motion under Federal Rule of Criminal Procedure 41(g) and subject to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the 60-day appeal deadline in Federal Rule of Appellate Procedure 4(a)(1)(B). See
United States v. Martinson, 809 F.2d 1364, 1367 (9th Cir. 1987). The district court
denied Morgenstern’s motion on October 22, 2020, and his notice of appeal was
delivered to prison authorities on January 4, 2021, 74 days after entry of the order.
See Houston v. Lack, 487 U.S. 266, 270-72 (1988) (notice of appeal by a pro se
prisoner is considered filed for purposes of Rule 4(a)(1) when it is delivered to
prison authorities for forwarding to the court). Although Morgenstern’s notice of
appeal requested an extension of time to appeal because of COVID-19 restrictions
at his prison, that filing does not constitute a proper motion for an extension of
time. See Malone v. Avenenti, 850 F.2d 569, 572 (9th Cir. 1988) (Rule 4(a)(5)
requires a formal motion for extension of time to appeal); Pettibone v. Cupp, 666
F.2d 333, 335 (9th Cir. 1981) (Rule 4(a)(5) expressly requires filing of separate
motion for extension of time and language of Rule precludes court from remanding
on theory that untimely notice of appeal might be considered motion for extension
of time). Therefore, we dismiss this untimely appeal for lack of jurisdiction. See
United States v. Sadler, 480 F.3d 932, 937 (9th Cir. 2007); see also Bowles v.
Russell, 551 U.S. 205, 214 (2007) (court lacks authority to create equitable
exceptions to jurisdictional requirement of a timely notice of appeal).
Appellee’s motion to supplement the record is denied.
DISMISSED.
2 21-30007