Jiggetts v. USA

Filing 6

OPINION AND ORDER: CONSTRUING ( 65 in 3:11cr84) as a motion to vacate and re-enter judgment as a motion under Federal Rule of Appellate Procedure 4(a)(5) requesting extension of time to appeal, motion for certificate of appealability, and motion to appeal in forma pauperis. The request to vacate and re-enter judgment is DENIED; the request for extension of time to appeal is GRANTED and extended to 5/13/15, DENYING a request for certificate of appealability, and DENYING the motion to appeal in forma pauperis.. Signed by Judge Robert L Miller, Jr on 5/13/15. (cc: USCA, Jiggetts, Schmid)(jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DARIUS L. JIGGETTS,
Petitioner
vs.
UNITED STATES OF AMERICA,
Respondent

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CAUSE NO. 3:14-CV-1766 RM
(Arising out of 3:11-CR-84 RM)

OPINION and ORDER
On February 12, 2015, the court denied Darius Jiggetts’s motion under 28
U.S.C. § 2255; judgment was entered the following day. Mr. Jiggetts is now before
the court requesting that that judgment be vacated and re-entered because he
didn’t receive a copy of the February 12 opinion and order until April 6. He says
that had he received timely notice that his petition had been denied, he would
have filed a motion to reconsider under Federal Rule of Civil Procedure 59. Mr.
Jiggetts also filed a notice of appeal indicating that he is appealing the February
12 dismissal of his § 2255 petition. The record of this cause was forwarded to the
Seventh Circuit Court of Appeals on May 6, and the court of appeals has assigned
Case No. 15-1982 to Mr. Jiggetts’s appeal.
Mr. Jiggetts’s current motion and notice of appeal were filed on May 4,
within the time permitted by Federal Rule of Appellate Procedure 4 for seeking an
extension of time to file an appeal, so the court construes his motion as one
brought under Federal Rule of Appellate Procedure 4(a)(5). Mr. Jiggetts has met

the requirements of that rule: he has shown good cause for an extension of the
deadline by submitting his affidavit stating that he didn’t get a copy of the court’s
February 12 order until April 6, and his current motion and notice of appeal were
filed on May 4, within thirty days of the expiration of the time set by Federal Rule
of Appellate Procedure 4(a)(1) to file an appeal in this action. Thus, Mr. Jiggetts’s
notice of appeal was timely filed, making the vacating and re-entry of the February
13 judgment unnecessary.
The court will also view Mr. Jiggetts’s motion as requesting a certificate of
appealability and, because no filing has been paid, requesting leave to proceed in
forma pauperis on appeal. Issuance of a certificate of appealability requires the
court to find that Mr. Jiggetts has made “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). He hasn’t done so. He didn’t
demonstrate that his trial or appellate counsel provided ineffective assistance and
he didn’t establish his claim of actual innocence. Because Mr. Jiggetts hasn’t
made a substantial showing of the denial of a constitutional right, the court denies
his implicit request for a certificate of appealability.
Federal Rule of Appellate Procedure 24(a)(3) provides that a financially
indigent person may be permitted to proceed on appeal in forma pauperis unless
the court “certifies that the appeal is not taken in good faith.” In other words, the
court must determine “that a reasonable person could suppose that the appeal
has some merit.” Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000). Because

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no reasonable person could find that Mr. Jiggetts’s appeal has any merit, the
court concludes that his appeal is not taken in good faith, and his request for
pauper status must be denied.
Based on the foregoing, the court GRANTS in part and DENIES in part Mr.
Jiggetts’s motion to vacate and re-enter judgment [docket # 65 in Cause No. 3:11CR-84] as follows:
(a) the request to vacate and re-enter judgment is DENIED;
(b) the request for an extension of time to file an appeal
pursuant to Federal Rule of Appellate Procedure 4(a)(5) is GRANTED,
and the time for filing a notice of appeal is extended to May 13, 2015;
(c) Mr. Jiggett’s request for a certificate of appealability is
DENIED; and
(d) Mr. Jiggett’s request to proceed in forma pauperis on appeal
is DENIED.
SO ORDERED.
ENTERED:

May 13, 2015

/s/ Robert L. Miller, Jr.
Judge, United States District Court

cc:

Clerk, Seventh Circuit Court of Appeals
D. Jiggetts
AUSA Schmid

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