Opinion
07 Civ. 9866 (DLC).
April 11, 2011
MEMORANDUM OPINION AND ORDER
By order and judgment entered on January 13, 2011, Lionel Piper's (the "petitioner") petition for a writ of habeas corpus was denied and this action was dismissed. On March 11, 2011 the Court's Pro Se Office received a motion for an extension of time to file a notice of appeal pursuant to Rule 4(a)(5) of the Federal Rules of Appellate Procedure from the petitioner. For the following reasons, the petitioner's motion is granted.
DISCUSSION
Rule 4(a)(5) provides that in a civil case, a motion for an extension of time to file a notice of appeal must be filed no later than 30 days after the expiration of the 30 day period in which a petitioner may file a notice of appeal. Fed.R.App.P. 4(a)(1)(A), 4(a)(5)(A)(i). The Court "lacks [subject matter] jurisdiction to grant any extension motion that is not filed within Rule 4(a)(5)'s 30-day `grace period.'" Cohen v. Empire Blue Cross Blue Shield, 142 F.3d 116, 118 (2d Cir. 1998) (per curiam). Furthermore, pursuant to Rule 4(a)(5)(A)(ii), a petitioner must show excusable neglect or good cause why such a motion should be granted.
The order dismissing Piper's petition was entered on January 13. Thus, the time in which Piper could file a notice of appeal as of right expired on or about Februay 13. Piper timely filed his motion for an extension of time to file a notice of appeal on March 11, within the thirty days permitted by Rule 4(a)(5)(A)(i). Additionally, since petitioner did not receive a copy of the January 13 Order until February 18 — several days after the period in which he was entitled to file a notice of appeal had expired — the petitioner has shown good cause or excusable neglect sufficient to grant the motion.
CONCLUSION
The petitioner's motion for an extension of time to file a notice of appeal is granted. The pet ioner's time to file a notice of appeal is extended fourteen days from the date of this order. See Fed.R.App.P. 4(a)(5)(C).
SO ORDERED.