Rulo v. Prudden
MEMORANDUM AND ORDER; IT IS HEREBY ORDERED that petitioner's motion for an extension of time to file a notice of appeal [Doc. # 60 ] is granted. IT IS FURTHER ORDERED that the Clerk of Court shall process the notice of appeal [Doc. # 61 ] filed on June 11, 2013. Signed by District Judge Carol E. Jackson on 07/24/2013. (DJO)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
Case No. 4:10-CV-416 (CEJ)
MEMORANDUM AND ORDER
On January 30, 2013, this Court denied the petition of Lonnie Rulo for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. On May 22, 2013, the Court received an
undated letter from petitioner, which the Court interprets as a motion for extension of
time to file a notice of appeal. Petitioner then filed a notice of appeal on June 11,
2013. Respondent has not responded to petitioner’s motion, and the time to do so has
Under the Federal Rule of Appellate Procedure 4(a)(1), a notice of appeal must
be filed with the district clerk within 30 days after entry of the judgment or order
appealed from. The district court may grant an extension of time to file a notice of
appeal if the party shows “excusable neglect or good cause.” Fed.R.App.P. 4(a)(5)(ii).
“[T]he party who moves for an extension of the filing period bears the burden of
demonstrating excusable neglect.” Vogelsang v. Patterson Dental Co., 716 F.Supp.
1215, 1218 (D.Minn. 1989).
However, “it is not inappropriate to give special
consideration to pro se appellants regarding their notices of appeal.” Weekley v. Jones,
927 F.2d 382, 386 (8th Cir. 1991).
“In general, excusable neglect may be found where a party has failed to learn
of an entry of judgment, or in extraordinary cases where injustice would otherwise
result.” Benoist v. Bhd. of Locomotive Eng’rs, 555 F.2d 671, 672 (8th Cir. 1977). In
this case, petitioner states that he was in administrative segregation at the time the
Court issued its opinion and judgment, and he was not aware that a judgment had
been entered. Although almost four months elapsed between the entry of judgment
and the filing of petitioner’s motion, considering petitioner’s segregation and his
previous attempts to appeal, it is in the interest of justice that the Court grant the
requested extension of time.
Throughout the years preceding the entry of judgment in this case, petitioner
diligently attempted to preserve his right to appeal despite his prolonged stay in
administrative segregation, where he has remained for 23 of the past 25 months. As
early as September 17, 2010, petitioner requested copies of the forms required to
appeal, explaining that:
I am prerequesting these documents so I will have them available in the
event of a less favorable ruling. Please do not misunderstand my
request, I just want to be prepared for the worst because of the very
limited amount of time allowed after the decision. [Doc. #21].
On May 11, 2011, petitioner filed a premature notice of appeal. [Doc. #33]. He
explained that he was in administrative segregation, without access to his legal files,
but had heard a rumor that the Court had reached a decision in his case. On June 12,
2011, petitioner moved for an extension to time to file his notice of appeal, which was
denied as moot. [Doc. #39]. The Eighth Circuit Court of Appeals dismissed petitioner’s
appeal for lack of jurisdiction. [Doc. #40]. On July 18, 2011, petitioner sent a letter
to the Court, explaining that he was being transferred to an unknown facility, and filed
another notice of appeal, “respectfully submitted prematurely to provisionally preserve
my rights to appeal if needed.” [Doc. #44].
Given the circumstances here---i.e., petitioner’s inability to learn of the entry of
judgment due to his confinement in administrative segregation and his frequent
attempts to appeal and remain abreast of the status of his case despite his
segregation---the Court will grant petitioner’s motion for an extension of time to file
his notice of appeal. Petitioner has shown excusable neglect, and it is in the interest
of justice that this appeal be allowed despite its tardiness.
IT IS HEREBY ORDERED that petitioner’s motion for an extension of time to
file a notice of appeal [Doc. # 60] is granted.
IT IS FURTHER ORDERED that the Clerk of Court shall process the notice of
appeal [Doc. #61] filed on June 11, 2013.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 24th day of July, 2013.
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