                                                                           FILED
                           NOT FOR PUBLICATION                             DEC 12 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


JOHN R. HAYS,                                    No. 12-56872

              Petitioner - Appellant,            D.C. No. 5:02-cv-00478-GAF-CW

  v.
                                                 MEMORANDUM*
J. HAMLET and C. A. TERHUNE,

              Respondents - Appellees.



JOHN R. HAYS,                                    No. 13-57166

              Petitioner - Appellant,            D.C. No. 5:02-cv-00478-GAF-CW

  v.

J. HAMLET and C. A. TERHUNE,

              Respondents - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                          -2-
                          Submitted December 10, 2014**
                              Pasadena, California

Before: SILVERMAN, BEA, and CHRISTEN, Circuit Judges.

      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 (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




        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                         -3-
forwarding on October 3, 2012, more than thirty days after the order was entered.1

Cf. Houston v. Lack, 487 U.S. 266, 270 (1988) (holding that a notice of appeal by a

pro se prisoner is considered filed for the purposes of Rule 4(a)(1) at the moment it

is delivered to prison authorities for forwarding). Therefore, Hays’ notice of

appeal is untimely unless he is able to reopen the time to file an appeal under

Federal Rule of Appellate Procedure 4(a)(6) or extend the time to file his notice of

appeal under Federal Rule of Appellate Procedure 4(a)(5).

      The parties agree that the district court correctly determined that it lacked

jurisdiction to consider Hays’ Federal Rule of Appellate Procedure 4(a)(6) motion

because the motion was untimely under Rule 4(a)(6)(B). See Bowles, 551 U.S. at

209 (holding that the time limits set forth in 28 U.S.C. § 2107(c) and Fed. R. App.

P. 4(a)(6) are “‘mandatory and jurisdictional’”). Therefore, the district court did

not abuse its discretion in denying Hays’ Rule 4(a)(6) motion. See Nguyen v. Sw.

Leasing & Rental, Inc., 282 F.3d 1061, 1064 (9th Cir. 2002) (“We review the grant

or denial of a motion brought pursuant to Rule 4(a)(6) for an abuse of discretion.”).




      1
        We note that Federal Rule of Appellate Procedure 4(a)(7), which governs
the date on which an order is deemed filed for appeal timing purposes, states that
an order is filed as soon as it is entered on the civil docket. Thus, the district
court’s order denying Hays’ Rule 60(b) motion was filed on August 8, 2012.
                                         -4-
      Further, Hays’ pro se “declaration of timeliness” did not qualify as a motion

for extension of time to file a notice of appeal under Federal Rule of Appellate

Procedure 4(a)(5). When a party seeks an extension of time under Rule 4(a)(5)

after the 30-day period prescribed by Rule 4(a)(1) has elapsed, “he must do so by

formal motion with notice to the other parties.” Malone, 850 F.2d at 572. Hays’

“declaration of timeliness” did not constitute a formal motion for extension of time

because the filing “did not explicitly request an extension of time.” Id.

      In sum, Hays’ notice of appeal was filed on October 3, 2012, over thirty

days after the district court denied his Rule 60(b) motion on August 10, 2012. The

district court properly denied his Rule 4(a)(6) motion, and his “declaration of

timeliness” did not qualify as a Rule 4(a)(5) motion. Therefore, we must dismiss

the appeal for lack of jurisdiction. See Bowles, 551 U.S. at 213.

      DISMISSED.
