Opinion
No. 3-03-CV-1298-L.
July 1, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Lenzell Brown, appearing pro se, has filed a notice of appeal and requested a certificate of appealability in this habeas case. Because petitioner did not mail his notice of appeal until April 7, 2004, 40 days after the judgment was entered, the court will construe the notice as a motion for leave to file a late or out-of-time appeal. 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 February 27, 2004. Therefore, his notice of appeal was due no later than March 29, 2004. In support of his motion, petitioner alleges that he was transferred to a TDCJ-ID medical facility approximately one week before the judgment was entered and he did not receive notice of the judgment until he returned to his unit on April 2, 2004. Petitioner immediately prepared a notice of appeal and placed it in the prison mail system on April 7, 2002. This 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.
The 30th day after the judgment was entered fell on Sunday, March 28, 2004. Therefore, petitioner had until the following Monday, March 29, 2004, to file a notice of appeal. See FED. R. APP. P. 26(a)(3).
RECOMMENDATION
Petitioner's motion for leave to file a late or out-of-time appeal should be granted. His notice of appeal and request for certificate of appealability dated April 7, 2004 and file-stamped April 21, 2004 should be deemed timely filed.