Opinion
CRIMINAL ACTION NO. 08-95-JJB-CN.
July 14, 2011
ORDER
This matter is before the Court on the "Motion for Extension of Time to Answer Pursuant to Fed.R.Civ.P. 6(b)(1)" filed by petitioner, Garrett Rushing ("Rushing"). In his motion, Rushing requests an extension of the deadline for filing a request for certificate of appealability relating to the Court's denial of his motion to vacate sentence, which decision was rendered on April 18, 2011 (R. Doc. 71).
A district court may extend the time for filing a notice of appeal or a request for certificate of appealability upon motion filed no later than thirty (30) days after the expiration of the time prescribed by Fed.R.App.P. 4 and upon the movant's showing of excusable neglect or good cause. Fed.R.App.P. 4(a)(5)(A); U.S. Gillaum, 2006 WL 6021163 (W.D.Wis. 2006). Under Fed.R.App.P. 4(a)(1)(B), when the United States is a party, as is the case in the present matter, a notice of appeal or request for certificate of appealability may be filed by any party within sixty (60) days after the judgment or order appealed from is entered. Fed.R.App.P. 4(a)(1)(B). Thus, Rushing had sixty (60) days from the Court's April 18, 2011 decision denying his motion to vacate sentence, or until June 17, 2011, to file his request for certificate of appealability. The Court may extend the deadline for filing such request as long as Rushing filed his motion for extension of time within thirty (30) days of June 17, 2011, or by July 17, 2011, and if Rushing establishes excusable neglect or good cause for his failure to comply with the time period set forth in Fed.R.App.P. 4(a)(1)(B).
Rushing timely filed his motion for extension of time on July 7, 2011. Furthermore, he has established good cause for his failure to timely file his request for certificate of appealability in that he has represented to the Court that he was recently assaulted at USP Victorville, requiring him to be hospitalized due to "very serious medical issues." Specifically, Rushing contends that he "lost a kidney, had a punctured lung and spinal cord damage that left him partially paral[y]zed in the leg." Rushing states, in his motion, that he was "just transferred to this institution [i.e., the U.S. Penitentiary — Tuscon] as a medical patient for rehabilitation" and that "his property and legal work [are] being sent from USP Victorville." He contends that he cannot respond to the Court's decision on his Section 2255 motion or work on his case until he receives his "legal work." He therefore requests a thirty (30) or sixty (60) day extension of the time within which to file his request for a certificate of appealability. In light of Rushing's serious medical issues and alleged inability to access information necessary to prepare his motion for certificate of appealability, Rushing's motion for extension will be granted.
Accordingly;
IT IS ORDERED that the "Motion for Extension of Time to Answer Pursuant to Fed.R.Civ.P. 6(b)(1)" filed by petitioner, Garrett Rushing, is hereby GRANTED and that petitioner will be allowed 60 days from the date of this Order within which to file his request for a certificate of appealability.
Baton Rouge, Louisiana, this 13th day of July, 2011.