Opinion
No. 3-04-CV-1494-M.
March 14, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Joseph Martin Paden, appearing pro se, has filed a motion for extension of time to file a certificate of appealability. For the reasons stated herein, the motion should be construed as a motion for extension of time to file a notice of appeal and 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 dismissing petitioner's application for writ of habeas corpus was entered on December 3, 2004. Therefore, his notice of appeal was due no later than January 3, 2005. In support of his motion for extension of time, petitioner alleges that the prison law library was closed over the Christmas holidays and his unit was on lockdown between January 3, 2005 and January 19, 2005. 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.
In sworn answers to interrogatories, petitioner states that he delivered his motion for extension of time to prison authorities for mailing sometime between January 31, 2005 and February 2, 2005. (Interrogatory # 1). Because petitioner deposited his motion in the prison mail system within 30 days of the date his notice of appeal was due, it is timely. See FED.R.APP.P.4(a)(1)(A)(i) (motion for extension of time must be filed no later than 30 days after notice of appeal is due) FED.R.APP.P 4(c)(1) (notice of appeal filed by inmate confined in an institution is timely "if it is deposited in the institution's internal mail system on or before the last day for filing.").
Petitioner mailed a document entitled "Petition for Writ of Certiorari to the Fifth Circuit Court of Appeals," which the court construes as a notice of appeal, on the same day he mailed his motion for extension of time. Therefore, at the very latest, the notice of appeal should be deemed filed as of February 2, 2005. See FED.R.APP.P.4(a)(5)(C) ("No 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.").
RECOMMENDATION
Petitioner's motion for extension of time to file a certificate of appealability should be construed as a motion for extension of time to file a notice of appeal and should be granted. The notice of appeal should be deemed filed as of February 2, 2005.