McNeil v. State of Nebraska et al

Filing 43

MEMORANDUM AND ORDER - Petitioner's Motion for Leave to Appeal in Forma Pauperis (filing no. 37 ) and Motion for Extension (filing no. 39 ) are granted. Petitioner's Motion for a Certificate of Appealability (filing no. 38 ) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMAAL ANDRE MCNEIL,
Petitioner,
vs.
STATE OF NEBRASKA, ATTORNEY
GENERAL FOR THE STATE OF
NEBRASKA, DOUGLAS COUNTY
ATTORNEY, WARDEN OF N.S.P.,
SCOTT FRANKS, Director of N.S.P.;
LEE ANN RETELSDORF, District
Court Judge, Mrs.; and CLERK OF THE
DISTRICT COURT,

4:18CV3041
MEMORANDUM
AND ORDER

Respondents.
This matter is before the court on a Notice of Appeal (filing no. 36) filed by
the Petitioner on September 28, 2018. Petitioner appeals from the court’s
Memorandum and Order and Judgment dated August 28, 2018 (filing nos. 29 and
30), in which the court dismissed his habeas petition without prejudice. Petitioner
has also filed a Motion for Leave to Appeal in Forma Pauperis (filing no. 37), a
Motion for a Certificate of Appealability (filing no. 38), and a Motion for
Extension of Time (filing no. 39).
First, the court finds that Petitioner may proceed on appeal in forma
pauperis. As set forth in Federal Rule of Appellate Procedure 24(a)(3):

(a) 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:
(A) 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 . . . .
Because Petitioner proceeded IFP in the district court, he may now proceed
on appeal in forma pauperis without further authorization.
Second, the court will deny Petitioner’s request for a certificate of
appealability in accordance with its previous determination set forth in the August
28, 2018 Memorandum and Order and Judgment. (See Filing Nos. 29 and 30.)
Lastly, Petitioner requests an extension of time in which to file his notice of
appeal based upon the filing of his motion for reconsideration (filing no. 33), upon
which the court has recently ruled. (See Filing No. 42.) Rule 4 of the Federal Rules
of Appellate Procedure requires a party to file a notice of appeal within 30 days
after the challenged judgment is entered. Fed. R. App. P. 4(a)(1). Rule 4(a)(5)
allows a party to move the district court to extend the time to file a notice of appeal
if “(a) he moves no more than thirty days after the original thirty day deadline has
passed, and (b) he shows good cause.” Pugh v. Minnesota, 380 Fed. Appx. 558,
559 (8th Cir. 2010) (emphasis added).
Here, Petitioner has filed a timely motion to extend the time to file his notice
of appeal. Though it appears that Petitioner’s motion is unnecessary, see Fed. R.
App. P. 4(a)(4)(B)(i), upon consideration, the court will extend the time in which

Petitioner had to file a notice of appeal to include the date on which his notice of
appeal was filed in this court. See Fed. R. App. P. 4(a)(5)(A).
IT IS THEREFORE ORDERED that:
1.
Petitioner’s Motion for Leave to Appeal in Forma Pauperis (filing no.
37) and Motion for Extension (filing no. 39) are granted.
2.
denied.

Petitioner’s Motion for a Certificate of Appealability (filing no. 38) is

Dated this 1st day of October, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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