Opinion
No. 3-04-CV-2346-R.
August 19, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner J.T. Taylor, appearing pro se, has filed a motion for extension of time to file a notice of appeal. For the reasons stated herein, the motion should be denied.
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 7, 2005. Therefore, his notice of appeal was due no later than March 9, 2005. Any motion for extension of time must have been filed within 30 days after the expiration of the deadline for filing a notice of appeal, or by April 8, 2005. In sworn interrogatory answers, petitioner admits that he did not deliver his motion for extension of time to prison authorities for mailing until April 20, 2005. (Interrog. #1). See FED. R. APP. P. 4(c)(1) (notice of appeal filed by inmate confined in penal institution is timely "if it is deposited in the institution's internal mail system on or before the last day for filing"). Petitioner attempts to excuse this delay by relying on his pro se status and his lack of familiarity with the rules of procedure. ( See Interrog. #3). However, such an excuse does extend the jurisdictional deadline for seeking an extension of time to file a notice of appeal. See Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981).
The mail room logs provided by respondent indicate that petitioner delivered his motion to prison authorities on April 22, 2005.
RECOMMENDATION
Petitioner's motion for extension of time to file a notice of appeal should be denied.
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party may file written objections to the recommendation within 10 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).