Opinion
No. 3-03-CV-2042-H.
May 21, 2004
FINDING AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Khoa Chuong Le, appearing pro se, has filed a motion for extension of time to file a notice of appeal and request a certificate of appealability. For the reasons stated herein, the motion should be granted.
A notice of appeal in a civil case must be filed with the district clerk "within 30 days after the judgment or order appealed from is entered." FED. R. APP. P. 4(a)(1)(A). However, a district court may extend the time for filing a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
The judgment denying petitioner's application for writ of habeas corpus was entered on April 28, 2004. Therefore, his notice of appeal is due no later than May 28, 2004. In support of his motion for extension of time, petitioner alleges that he has limited access to the prison law library and needs more time to research and prepare his notice of appeal. Such an excuse constitutes "good cause" for an extension of time. See Harris v. Cockrell, 2003 WL 21500397 at *2 (N.D. Tex. Apr. 9, 2003) (Lynn, J.) ("good cause" shown where prisoner lacked access to legal materials "due to circumstances beyond his control"). Accordingly, petitioner's motion should be granted.
RECOMMENDATION
Petitioner's motion for extension of time to file a notice of appeal and request a certificate of appealability should be granted. The federal rules of appellate procedure provide that "[n]o extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 10 days after the date when the order granting the motion is entered, whichever is later." FED. R. APP. P. 4(a)(5)(C). Therefore, petitioner should be required to file a notice of appeal and request a certificate of appealability not later than June 28, 2004, or 10 days after this recommendation is adopted by the district judge, whichever is later.