Opinion
No. 3:15-CV-1832-M-BH
01-19-2018
BRANDON WOODRUFF, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
Referred to U.S. Magistrate Judge
FINDINGS , CONCLUSIONS, AND RECOMMENDATION
By Special Order 3-251, this case has been referred for findings, conclusions, and recommendation. Before the Court is the unopposed Motion for Extension of Time to File Notice of Appeal, received January 18, 2018 (doc. 21). Based on the relevant findings and applicable law, the motion should be granted.
I. BACKGROUND
Brandon Woodruff (Petitioner) challenged his conviction for capital murder pursuant to 28 U.S.C. § 2254 . His habeas petition was denied, and judgment was entered on November 30, 2017. (See doc. 20.) His unopposed motion seeks an extension of time to file his notice of appeal within one day after the motion is granted. He contends that counsel sent the Court's ruling on the habeas petition to him one week after the judgment was entered, but that he did not receive it until mid-December. Because of the holiday season, it took time for Petitioner to confer with his family and supporters and to make arrangements to retain counsel for an appeal.
II. MOTION TO EXTEND TIME TO APPEAL
Federal Rule of Appellate Procedure 4(a)(1) requires that a notice of appeal in a civil case be filed within thirty days of the entry of the judgment. The time to appeal may be extended up to thirty days if a party moves for an extension of time within thirty days of the time to appeal and shows excusable neglect or good cause. Fed. R. App. P. 4(a)(5).
Petitioner's notice of appeal from the November 30, 2016 judgment was due on December 30, 2017. Because December 30, 2017, was a Saturday, and Monday, January 1, 2018, was a federal legal holiday, the notice of appeal was due on Tuesday, January 2, 2018. See Fed. R. App. P. Rule 26(a)(1)(C) (if the last day of a period falls on a Saturday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday). The motion for extension of time was filed within thirty days from that due date. Petitioner has shown good cause for extending the time to appeal.
III. RECOMMENDATION
The Motion for Extension of Time to File Notice of Appeal should be GRANTED, and Petitioner's time to file his notice of appeal should be extended until one day after the motion has been granted by the acceptance of this recommendation.
SIGNED this 19th day of January, 2018.
/s/_________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of these findings, conclusions and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific 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 Servs. Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
/s/_________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE