Carter v. Howes

Filing 18

ORDER granting 16 Motion Extend Time to File Appeal. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EUGENE CARTER 143752,
Petitioner,
CASE NO. 2:08-CV-14228
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE

v.
CAROL R. HOWES,
Respondent.
_______________________________/

OPINION AND ORDER EXTENDING TIME TO FILE THE APPEAL PURSUANT TO
FEDERAL RULES OF APPELLATE PROCEDURE(4)(a)(5)
On December 1, 2011, this Court dismissed Petitioner's habeas application brought
pursuant to 28 U.S.C. § 2254. The Court also denied Petitioner a certificate of appealability,
but granted him leave to appeal in forma pauperis. (Dkts. 14 and 15). Petitioner has now
filed a motion with this Court, asking that the time for him to file a notice of appeal be
extended. For the reasons stated below, the motion is GRANTED.
Petitioner requests that this Court issue an order that would permit him to file his
notice of appeal. As the basis for this claim, Petitioner alleges that although he received
a copy of the Court's opinion and order denying the petition for writ of habeas, a fellow
prisoner assisting him filed his notice of appeal directly in the Sixth Circuit instead of with
this Court. By the time Petitioner discovered the error, he alleges, the time for filing a
notice of appeal had expired.
Fed. R. App. P. 4 (a)(1) states that a notice of appeal must be filed within thirty days
of the entry of the judgment or order from which the appeal is taken. This time limit is

1

mandatory and jurisdictional. Browder v. Director, Department of Corrections of Illinois, 434
U.S. 257, 264 (1978). The failure of an appellant to timely file a notice of appeal deprives
an appellate court of jurisdiction. Rhoden v. Campbell, 153 F. 3d 773, 774 (6th Cir. 1998).
However, a party asserting good cause may seek relief within 30 days of the time for filing
a notice of appeal under Federal Rule of Appellate Procedure 4(a)(5). Zack v. United
States, 133 F.3d 451, 453 (6th Cir. 1998).
Fed.R.App.P. 4 (a)(5)(A) indicates that a district court may extend the time to file 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) that party shows excusable neglect or good cause.
Petitioner filed the instant motion on January 12, 2012, within 30 days of the
expiration of time to file his notice of appeal. The Court accepts his claim that he failed to
timely file a notice of appeal because a prisoner assisting him with his appeal filed the
notice in the wrong court. The Court will therefore grant the motion. In accordance with
Fed. R. App. P. 4(a)(5)(C), the time for filing a notice of appeal is enlarged to fourteen days
from the date of this order.
Accordingly, IT IS ORDERED that the motion to reopen time to file appeal (Dkt. 16)
is GRANTED. Petitioner shall have fourteen (14) days from the date of this order to file a
notice of appeal.

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: January 26, 2012

2

The undersigned certifies that a copy of this
document was served on the attorneys of
record and Eugene Carter by electronic
means or U.S. Mail on January 26, 2012.
s/Carol A. Pinegar
Deputy Clerk

3