Kislyak v. William Gibson

Filing 21

MEMORANDUM AND ORDER -Petitioner shall have until January 10, 2013, to submit an affidavit to show excusable neglect or good cause for failing to file a timely notice of appeal. If Petitioner fails to submit such an affidavit by January 10, 2013, P etitioners appeal will not be processed. Petitioner shall have until January 10, 2013, to submit either the $455.00 appellate filing fee or a motion to proceed IFP, with the required affidavit. If Petitioner fails to submit the fee or a motion and affidavit, Petitioners appeal will not be processed. ***Pro Se Case Management Deadlines: Check for affidavit and filing fee on January 10, 2013. ( Pro Se Case Management Deadline set for 1/10/2013.) Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAVEL KISLYAK,
Petitioner,
v.
WILLIAM GIBSON, Chief Executive
Officer of the Lincoln Regional
Center,
Respondent.

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4:12CV3025

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. On September 21, 2012, the court
dismissed Petitioner Pavel Kislyak’s Petition for Writ of Habeas Corpus with prejudice and
entered Judgment against him. (Filing Nos. 17 and 18.) On December 6, 2012, Petitioner
filed a Notice of Appeal. (Filing No. 19.)
Federal Rule of Appellate Procedure 4(a)(1) requires that the notice of appeal in a
civil case be filed within thirty days after the judgment or order appealed from is entered.
“A timely notice of appeal is both mandatory and jurisdictional.” Burgs v. Johnson Cnty.,
Iowa, 79 F.3d 701, 702 (8th Cir 1996). Morever, an untimely notice of appeal cannot serve
as a motion for extension of time to file appeal. Id. However, the district court may extend
the time to file a notice of appeal if a party moves for an extension of time and shows
excusable neglect or good cause. Fed. R. App. P. 4(a)(5)(A)(ii).
Petitioner filed his Notice of Appeal more than 30 days after the court’s September
21, 2012, Memorandum and Order. (See Docket Sheet.) Moreover, Petitioner did not
move to extend the time to file a notice of appeal in this matter. (Id.) However, on the
court’s own motion, Petitioner shall have until January 10, 2013, to file an affidavit to show
excusable neglect or good cause for failing to file a timely notice of appeal. If Petitioner
fails to submit such an affidavit, or fails to show good cause, Petitioner’s appeal will not be
processed.

In addition, Petitioner failed to submit the $455.00 appellate filing fee or a motion to
proceed in forma pauperis (“IFP”). (See Docket Sheet.) Because the court is providing
Petitioner with the opportunity to show excusable neglect or good cause for failing to file
a timely notice of appeal, the court will also provide Petitioner until January 10, 2013, to
submit the $455.00 appellate filing fee, or a motion to proceed IFP. If Petitioner fails to
submit the appellate filing fee or a motion to proceed IFP, Petitioner’s appeal will not be
processed.
IT IS THEREFORE ORDERED that:
1.

Petitioner shall have until January 10, 2013, to submit an affidavit to show
excusable neglect or good cause for failing to file a timely notice of appeal.
If Petitioner fails to submit such an affidavit by January 10, 2013, Petitioner’s
appeal will not be processed;

2.

Petitioner shall have until January 10, 2013, to submit either the $455.00
appellate filing fee or a motion to proceed IFP, with the required affidavit. If
Petitioner fails to submit the fee or a motion and affidavit, Petitioner’s appeal
will not be processed; and

3.

The Clerk of the court is directed to set a pro se case management deadline
in this case using the following text: Check for affidavit and filing fee on
January 10, 2013.

DATED this 13th day of December, 2012.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S.
District Court for the District of Nebraska does not endorse, recommend, approve, or
guarantee any third parties or the services or products they provide on their Web sites.
Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the court.
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