Barajas v. Falk et al

Filing 38

ORDER. ORDERED that Applicant's Motion to Supplement Record With Prison Mail Log 35 is GRANTED. ORDERED that Applicant's Motion to File/Accept Notice of Appeal Out-of-Time 30 is GRANTED. Applicant's Notice of Appeal filed on September 8, 2015 26 is deemed to be timely filed. ORDERED that the Clerk of Court provide the Court of Appeals with a copy of this Order. Signed by Judge Philip A. Brimmer on 11/03/15.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-01827-PAB
JESSE BARAJAS,
Applicant,
v.
FRANCIS FALK, Warden, L.C.F., and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER GRANTING MOTION TO FILE APPEAL OUT OF TIME

Applicant, Jesse Barajas, has moved this Court for acceptance of his untimely
Notice of Appeal [Docket No. 26]. In support of his Motion, he claims that he never
received a copy of the Order of July 30, 2015, denying his § 2254 habeas application
and only learned of it by searching the law library computer, at which time it was too
late to file a timely notice of appeal.
In general, a litigant must file a notice of appeal within thirty days of entry of
judgment. Fed. R. App. P. 4(a)(1)(A). Notwithstanding, a district court may, upon a
motion filed no later than 30 days after the deadline for filing a notice of appeal, extend
the time for filing an appeal if the moving party shows excusable neglect or good cause.
Fed. R. App. P. 4(a)(5)(A)(i) & (ii). See also Fed. R. App. P. 6 (allowing court to reopen
appeal period if a party does not receive a final copy of the judgement within 21 days).
Respondents filed a Response to Applicant’s Motion on October 14, 2015,
wherein they submitted that they would not be prejudiced by the delay and conceded

that the reason for the delay, i.e., Applicant did not receive a copy of the final judgment,
may not have been within his control [Docket No. 33]. Respondents further asserted
that Applicant should be required to show his conduct “was in good faith” by producing
a copy of the prison mail logs to show that he did not timely receive a copy of either the
order denying his habeas application or the final judgment.
On October 22, 2015, Applicant produced the m ail log showing that he did not
receive any incoming mail during the relevant time period. Accordingly, it is
ORDERED that Applicant’s Motion to Supplement Record With Prison Mail Log
[Docket No. 35] is GRANTED. It is further
ORDERED that Applicant’s Motion to File/Accept Notice of Appeal Out-of-Time
[Docket No. 30] is GRANTED. Applicant’s Notice of Appeal filed on September 8, 2015
[Docket No. 26] is deemed to be timely filed. It is further
ORDERED that the Clerk of Court provide the Court of Appeals with a copy of
this Order.

DATED November 3, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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