Favorite v. Bergh

Filing 20

ORDER denying 18 petitioner's Motion for equitable tolling or an extension of time to file a notice of appeal. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DQUAN FAVORITE,
Petitioner,
CASE NO. 11-10266
HONORABLE GEORGE CARAM STEEH

v.
DAVID BERGH,
Respondent.
___________________________/

ORDER DENYING PETITIONER’S MOTION FOR EQUITABLE TOLLING
OR AN EXTENSION OF TIME TO FILE A NOTICE OF APPEAL (Doc. No. #18)
I. Introduction
Petitioner Dquan Favorite is a state prisoner at Cotton Correctional Facility (JCF)
in Jackson, Michigan. In 2011 he filed a habeas corpus petition under 28 U.S.C. §
2254. On October 29, 2013, the Court denied the habeas petition, but granted in part a
certificate of appealability and leave to proceed in forma pauperis on appeal. Thirty
days later on November 28, 2013, the deadline expired for filing an appeal.
On December 4, 2013, petitioner signed and dated a notice of appeal, and he
certified, under penalty of perjury, that he delivered his notice of appeal to prison
authorities on the same day. Under the “prison mailbox rule,” his notice of appeal is
considered “filed” on the date that he delivered it to the prison authorities for forwarding
to the clerk of the court. Houston v. Lack, 487 U.S. 266, 276 (1988). On December 9,
2013, petitioner signed and submitted a second notice of appeal and a motion for either
equitable tolling of the appellate deadline or an extension of time to file a notice of
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appeal. The motion seeks either a ruling that the notice of appeal signed and dated on
December 9, 2013, is timely or equitable tolling of the deadline for filing an appeal.
II. Discussion
Habeas corpus cases are civil cases, Rumsfeld v. Padilla, 542 U.S. 426, 452
(2004) (Kennedy, J., concurring); O’Neal v. McAninch, 513 U.S. 432, 440 (1995), and
an appellant ordinarily has thirty days from the judgment in a civil case to file a notice of
appeal. Fed. R. App. P. 4(a)(1)(A). “[T]he timely filing of a notice of appeal in a civil
case is a jurisdictional requirement,” and courts have “no authority to create equitable
exceptions to jurisdictional requirements.” Bowles v. Russell, 551 U.S. 205, 214 (2007).
The Court therefore denies petitioner’s request for equitable tolling of the appellate
deadline.
In the alternative, petitioner seeks an extension of time to file a notice of appeal.
“District courts [do] have limited authority to grant an extension of the 30-day time
period.” Id. at 208. Under Federal Rule of Appellate Procedure 4(a)(5)(A), a district
court may extend the time to file a notice of appeal if a party so moves not later than
thirty days after the time prescribed by Rule 4(a) expires and the party shows
“excusable neglect or good cause.”
Petitioner is not seeking an extension of time on the basis of “excusable neglect.”
He claims to have been diligent in attempting to file a notice of appeal.
The primary basis for petitioner’s request for an extension of time to file an
appeal is institutional “lock-downs” at JCF during November of 2013. Petitioner
contends that, due to the “lock-downs,” his access to the prison law library was
restricted and he was not able to contact the prison’s legal-writer program for assistance
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in drafting a notice of appeal until November 26, 2013. In addition, petitioner states that
the prison law library was closed on November 28, 2013, and November 29, 2013, for
the Thanksgiving holiday. He claims that, under the circumstances, he has established
“good cause” for filing an untimely appeal.
The problem with petitioner’s argument is that he did not file his motion for
extension of time until after the thirty-day deadline expired for filing a notice of appeal.
The deadline for filing a notice of appeal expired on November 28, 2013. Petitioner
signed and dated his motion for equitable tolling or an extension of time eleven days
later on December 9, 2013. When a “motion for extension of time is filed after the time
for filing the notice of appeal has run, the motion may only be granted upon a showing
of “excusable neglect . . . .” Curry v. Eaton Corp., 400 F. App’x 51, 56 (6th Cir. 2010).
Petitioner is not alleging “excusable neglect,” and even though he has attempted
to show “good cause” for not filing a timely appeal, “showings of ‘good cause’ are
relevant only when the motion is filed before the expiration of the initial appeal period.”
Id. (citing Zack v. United States, 133 F.3d 451, 453 n. 1 (6th Cir. 1998) (citing Fed. R.
App. P. 4(a)(5) advisory committee’s note (1979 Amendment))). Accordingly, the
motion for equitable tolling or an extension of time to file a notice of appeal [Doc. No.
18] is DENIED.
Dated: February 4, 2014
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
February 4, 2014, by electronic and/or ordinary mail and or
Dquan Favorite #712538, G. Robert Cotton Correctional
Facility, 3500 N. Elm Road, Jackson, MI 49201.
s/Barbara Radke
Deputy Clerk

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