Brown v. Rivard

Filing 19

MEMORANDUM OPINION and ORDER Construing Petitioner's "(Instanter) Petition for Permission, or Leave to Appeal" as a Federal Rules of Appellate Procedure Rule 4(a)(5) Motion for Extension of Time and Granting the Motion 13 - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Ervin Brown,
Petitioner,
v.

Case No. 14-cv-14771
Judith E. Levy
United States District Judge

Steven Rivard,
Mag. Judge Elizabeth A. Stafford
Respondent.
________________________________/
OPINION AND ORDER CONSTRUING PETITIONER’S
“(INSTANTER) PETITION FOR PERMISSION, OR LEAVE TO
APPEAL” AS A FEDERAL RULES OF APPELLATE
PROCEDURE RULE 4(a)(5) MOTION FOR EXTENSION OF
TIME AND GRANTING THE MOTION [13]
On January 29, 2016, this Court entered an opinion and order
denying the petition for writ of habeas corpus and separately entered
judgment.

(Dkt. 11; Dkt. 12.)

On March 30, 2016, Petitioner’s

“(Instanter) Petition for Permission, or Leave to Appeal,” Notice of
Appeal, and Application to Proceed In Forma Pauperis, all dated March
24, 2016, were entered on the Docket.

(Dkt. 13; Dkt. 14; Dkt. 15.)

Petitioner’s Application to Proceed In Forma Pauperis was denied on
April 6, 2016. (Dkt. 17.)

On June 29, 2016, the Court of Appeals remanded the case for
consideration of the “(Instanter) Petition for Permission, or Leave to
Appeal.” (Dkt. 18.) As noted by the court, Petitioner “appears to offer
an excuse as to why his notice of appeal was filed late,” and because
that “document was filed within the time for filing a Federal Rule of
Appellate Procedure 4(a)(5) motion for an extension of time,” this Court
must determine whether it “should be treated as a Rule 4(a)(5) motion
for an extension of time and, if appropriate, [rule] on the motion.” (Id.)
The “(Instanter) Petition for Permission, or Leave to Appeal”
should be treated as a Rule 4(a)(5) motion for an extension of time.
Petitioner is pro se, and although he styles the motion as a “petition”
under Rule 4(b), he “alleges a timeline that might satisfy the conditions
of Rule 4(a)[(5)].” See Bassir v. United States, No. 14-2583, 2015 U.S.
App. LEXIS 2550, at *2 (6th Cir. Feb. 10, 2015) (construing a late notice
of appeal as a Rule 4(a)(6) motion to reopen the appeal period) (citing
Sanders v. United States, 113 F.3d 184, 187 n.5 (11th Cir. 1997)
(“Construing a pro se litigant’s late notice of appeal as a Rule 4(a)(6)
motion satisfies that Rule’s requirement for a motion.”)).

The Sixth

Circuit construes a late pro se notice of appeal itself as a Rule 4(a)
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motion in some circumstances.

See id.

Petitioner’s separately filed

“(Instanter) Petition for Permission, or Leave to Appeal” should also be
construed as such.
Under Rule 4(a)(5), this Court’s authority to reopen and extend
the time for filing a notice of appeal after the lapse of the usual thirty
days is set forth as follows:
(A) The 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) regardless of whether its motion is filed before or
during the 30 days after the time prescribed by this
Rule 4(a) expires, that party shows excusable neglect
or good cause. . . .
Fed. R. App. P. 4(a)(5).
The motion was timely filed in accordance with Rule 4(a)(5)(A)(i).
The judgement was entered on January 29, 2016. The notice of appeal
was therefore due on or before February 29, 2016. Even though the
Rule 4(a)(5) motion was entered on March 30, 2016, thirty-one days
after the time prescribed by Rule 4(a)(1), Petitioner is not an e-filer and
had signed the motion on March 24, 2016. On balance, the Court finds
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that Petitioner “move[d] no later than 30 days after” the time to appeal
expired on February 29, 2016.
And Petitioner has shown “good cause.” To determine whether
the failure to file a timely notice of appeal is excusable the Court must
consider four factors: (1) the risk of prejudice to the nonmoving party;
(2) the length of delay and its potential prejudice upon the judicial
proceeding; (3) the reason for the delay; and (4) whether the movant
acted in good faith. See Pioneer Inv. Servs. Co., v. Brunswick Assocs.
Ltd. P’ship, 507 U.S. 380, 388 (1993). Good cause should be found when
forces beyond the control of the petitioner prevented him from filing a
timely notice of appeal. See, e.g., Mirpuri v. ACT Mfg., Inc., 212 F.3d
624, 630 (1st Cir. 2000).
Petitioner did not receive the opinion and order or judgment until
February 25, 2016 (see Dkt. 13 at 2) because the documents were
mistakenly mailed to the wrong address and were otherwise delayed in
reaching Petitioner, which was not in his control. (See also Dkt. text
entries dated January 29, 2016, and February 10, 2016.)

And

Petitioner notes that because he is pro se and it took him additional

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time to correspond with others in preparing his appellate materials, he
could not meet the deadline.
The risk of prejudice to the nonmoving party is low, especially
given the nature of the appeal in this case. And given the strictures of
the rule, the length of the delay is necessarily short; here, only thirty
days. Because Petitioner has shown good cause for why he was unable
to file his notice of appeal within the original deadline and then timely
moved for an extension of time under Rule 4(a)(5), his motion (Dkt. 13)
is GRANTED.
Petitioner filed his notice of appeal at the time he filed the Rule
4(a)(5) motion. (Dkt. 14.) Pursuant to this order, the notice of appeal
was timely filed.

See, e.g., Salaam v. Adams, No. 9:03-CV-517

(LEK/GHL), 2007 U.S. Dist. LEXIS 4736, at *3 (N.D.N.Y. Jan. 23, 2007)
(“[Plaintiff]’s Motion for an extension of time within which to file a
notice of appeal is hereby granted.

Accordingly, Plaintiff’s notice of

appeal, already filed with this Court . . . , shall be accepted and
forwarded to the United States Court of Appeals . . . .”)
IT IS SO ORDERED.
Dated: July 1, 2016
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
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United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on July 1, 2016.

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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