Davis v. Houston
MEMORANDUM AND ORDER - Petitioner's Notice of Appeal is deemed timely filed. Petitioner's Motion for Leave to Appeal In Forma Pauperis (Filing No. 26 ) is granted. Petitioner shall have until March 25, 2012, in which to file a motion for certificate of appealability and brief in support. In the event that Petitioner fails to file a motion and brief in support by that date, the court will deny the issuance of a certificate of appealability. The Clerk of the court is directed to se t a pro se case management deadline with the following text: March 25, 2012: Motion and brief on certificate of appealability due. (Pro Se Case Management Deadline set for 3/25/2012.) Ordered by Chief Judge Laurie Smith Camp. (Copy mailed/e-mailed to pro se party)(GJG, ) Modified on 3/2/2012 to correct pro se case management deadline (GJG).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEVE L. DAVIS,
CASE NO. 4:10CV3138
This matter is before the court on Petitioner’s Notice of Appeal (Filing No. 25),
Motion for Leave to Appeal In Forma Pauperis (Filing No. 26), and Motion for Extension
of Time (Filing No. 27). The court dismissed the Petition in this matter on May 13, 2011.
(Filing Nos. 23 and 24.) On February 28, 2012, Petitioner filed his Notice of Appeal. (Filing
No. 25.) Therefore, 291 days elapsed between the court’s Judgment and the filing of
Petitioner’s Notice of Appeal.
Federal Rule of Appellate Procedure 4 (“Rule 4”) governs the time in which a notice
of appeal must be filed. As set forth in Rule 4, a notice of appeal “must be filed with the
district clerk within 30 days after the judgment or order appealed from is entered.” Fed. R.
App. P. 4(a)(1)(A). This time limit is mandatory and jurisdictional, and failure to file a timely
notice of appeal deprives an appellate court of jurisdiction. See, e.g., Lowry v. McDonnell
Douglas Corp., 211 F.3d 457, 462-64 (8th Cir. 2000),(citations omitted). However, Rule
4 permits an extension of time in which to file an appeal if (1) such extension is requested
within the “extension period,” i.e., within 30 days after expiration of the appeal deadline;
and (2) regardless of the “extension period,” the appellant shows excusable neglect or
good cause for the delayed filing of the appeal. Fed. R. App. P. 4(a)(5)(A).
In this matter, Petitioner did not seek an extension of the time in which to file a
notice of appeal within the “extension period.” Regardless, an extension under Rule 4
would still be appropriate, provided that the requisite showing of excusable neglect or good
cause has been made. The Eighth Circuit has clarified “excusable neglect” as follows:
[T]he determination ... is at bottom an equitable one, taking account of all
relevant circumstances surrounding the party’s omission. ... [T]hose
circumstances ... include the danger of prejudice to the [non-moving party],
the length of the delay and its potential impact on judicial proceedings, the
reason for the delay, including whether it was within the reasonable control
of the movant, and whether the movant acted in good faith.
Lowry, 211 F.3d at 462 (citation and quotation omitted).
Here, the reason set forth by Petitioner for his failure to timely file a notice of appeal
is that he only recently received the court’s Memorandum and Order and Judgment
dismissing this matter. (Filing No. 27.) The court’s records show that Petitioner sent a
Letter on February 9, 2012, inquiring about the status of his case and whether “an opinion”
had been reached. (Filing No. 29.) In response, the Clerk of the court sent Petitioner a
copy of the Memorandum and Order and Judgment entered on May 13, 2011. (Id.)
Petitioner asserts that the receipt of these materials on February 9, 2012, was the first time
he had notice that this matter had been dismissed. (Filing No. 27.) In light of this, the
court finds that Petitioner has shown good cause for his failure to timely file his Notice of
Appeal and his appeal is deemed timely filed.
Also pending is Petitioner’s Motion for Leave to Appeal In Forma Pauperis. (Filing
No. 26.) Petitioner is a prisoner who was previously granted leave to proceed IFP. (Filing
No. 5.) Federal Rule of Appellate Procedure 24(a)(3) states:
Leave to Proceed in Forma Pauperis ....
(3) Prior Approval. A party who was permitted to proceed in forma
pauperis in the district-court action, or who was determined to be financially
unable to obtain an adequate defense in a criminal case, may proceed on
appeal in forma pauperis without further authorization, unless the district
court – before or after the notice of appeal is filed– certifies that the appeal
is not taken in good faith or finds that the party is not otherwise entitled to
proceed in forma pauperis and states in writing its reasons for the
certification or finding[.]
Id. The court finds that, because Petitioner was previously given leave to proceed IFP,
he may now “proceed on appeal in forma pauperis without further authorization” in
accordance with Federal Rule of Appellate Procedure 24.
Petitioner also seeks additional time in which to file a motion for certificate of
appealability and brief in support. (Filing No. 27.) As set forth below, the court will permit
Petitioner until March 25, 2012, to file these documents.
IT IS THEREFORE ORDERED that:
Petitioner’s Notice of Appeal is deemed timely filed;
Petitioner’s Motion for Leave to Appeal In Forma Pauperis (Filing No. 26) is
Petitioner shall have until March 25, 2012, in which to file a motion for
certificate of appealability and brief in support. In the event that Petitioner
fails to file a motion and brief in support by that date, the court will deny the
issuance of a certificate of appealability; and
The Clerk of the court is directed to set a pro se case management deadline
with the following text: March 25, 2012: Motion and brief on certificate of
DATED this 2nd day of March, 2012.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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