Ewing v. Wallace

Filing 17

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioners motion for extension of time to file a notice of appeal pursuant to Rule 4(a)(5) of the Federal Rules of Appellate Procedure [#16] is GRANTED. IT IS FURTHER ORDERED that petit ioners notice of appeal must be filed no later than fourteen (14) days from the date of this Memorandum and Order. IT IS HEREBY ORDERED that petitioners request to proceed in forma pauperis on appeal is GRANTED pending receipt of petitioners notice of appeal.Dated this 25th day of January, 2013. (Response to Court due by 2/8/2013.). Signed by District Judge Audrey G. Fleissig on 1/25/2013. (KSM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JERMAINE S. EWING,
Petitioner,
v.
IAN WALLACE,
Respondent.

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No. 4:12CV1201 AGF

MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s motion for extension of time to file
a notice of appeal pursuant to Rule 4(a)(5) of the Federal Rules of Appellate Procedure.
The motion will be granted.
Petitioner filed his petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on July 2, 2012. On September 28, 2012, the Court dismissed the petition
pursuant to Fed.R.Civ.P. 41(b). Petitioner filed a motion for “rehearing,” which the
Court construed as a motion for reconsideration brought pursuant to Fed.R.Civ.P. 60,
on October 2, 2012.1 In his motion for rehearing, petitioner seemed increasingly
confused as to whether state or federal law applied to the matter at hand. Although the

1

Petitioner placed his motion in the prison mail system on October 2, 2012.
However, it was not received and docketed by this Court until October 9, 2012. Under
the prison mailbox rule, the Court will accept the document as having been filed on the
2nd of October.

Court took great pains to address petitioner’s arguments, his motion was nevertheless
denied on November 19, 2012. Petitioner filed his motion for extension of time to file
his notice of appeal on January 16, 2013.2
Pursuant to Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure,
petitioner’s notice of appeal had to be filed no later than thirty (30) days after entry of
the judgment. However, pursuant to Rule 4(a)(4)(A), certain post-dismissal motions
have an effect on the time for filing a notice of appeal. In this case, as noted above,
petitioner filed a motion for “rehearing” on October 2, 2012, which the Court construed
as a motion for reconsideration under Fed.R.Civ.P. 60. Pursuant to Fed.R.App.P.
4(a)(4)(A)(vi), the time to file an appeal runs from the entry of the order disposing of
a motion filed pursuant to Fed.R.Civ.P.60.3 The Court denied petitioner’s motion on
November 19, 2012. Thus, petitioner’s notice of appeal was due to the Court no later
than December 19, 2012.

2

Petitioner’s motion for extension of time to file a notice of appeal was filed in
this Court on January 22, 2013. However, the Court presumes that petitioner placed
his motion in the prison mail system on January 16, 2013, the date noted on petitioner’s
motion. The Court considers the date the motion was placed in the prison mail system
to be the date the motion was filed. See Fed.R.App. P. 4(c).
3

For this Rule to apply, the motion cannot be filed any later than twenty-eight
(28) days after the judgment was entered. As such, petitioner’s later motions for relief
from judgment, which were filed more than twenty-eight (28) days past the September
28, 2012 Order of Dismissal, have no bearing on the time for filing a notice of appeal.
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Under Rule 4(a)(5)(A) of the Federal Rules of Appellate Procedure, this Court
may extend the time for filing a notice of appeal if the “party so moves no later than 30
days after the time prescribed by this Rule 4(a) expires” and if the “party shows
excusable neglect or good cause.” “No extension under . . . Rule 4(a)(5) may exceed
30 days after the prescribed time or 14 days after the date when the order granting the
motion is entered, whichever is later.” Fed. R. App. P. 4(a)(5)(C). The United States
Court of Appeals for the Eighth Circuit has counseled that pro se appellants may be
given “special consideration . . . regarding their notices of appeal.” Weekley v. Jones,
927 F.2d 382, 386 (8th Cir. 1991).
Assuming that petitioner placed his motion for extension of time in the prison
mail system on January 16, 2013, the date noted on the motion, then his motion was
timely filed under Rule 4(a)(5)(A).4 Although in his motion, petitioner fails to assert
a specific reason why he should be granted additional time, the Court finds that
petitioner’s general confusion throughout this litigation as to the application of state
versus federal law, as well as his pro se status, provides the good cause necessitated
under the Rule. As a result, the motion will be granted.

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Application of Rule 4(a)(5)(A) allowed for a timely motion for extension of time
to be filed no later than January 18, 2013.
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Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion for extension of time to
file a notice of appeal pursuant to Rule 4(a)(5) of the Federal Rules of Appellate
Procedure [#16] is GRANTED.
IT IS FURTHER ORDERED that petitioner’s notice of appeal must be filed
no later than fourteen (14) days from the date of this Memorandum and Order.
IT IS HEREBY ORDERED that petitioner’s request to proceed in forma
pauperis on appeal is GRANTED pending receipt of petitioner’s notice of appeal.
Dated this 25th day of January, 2013.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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