WADE v. WARDEN FCI FAIRTON et al

Filing 18

MEMORANDUM AND ORDER, Petitioner's request to extend time to file a Notice of Appeal (ECF No. 17 ) is granted, pursuant to Fed. R. App. P. 4(a)(5)(A); Petitioner shall have fourteen days from the date this Memorandum and Order is entered to file his Notice of Appeal with the district clerk in accordance with Fed. R. App. P. 4(a)(1). Case Closed. Signed by Judge Renee Marie Bumb on 1/13/17. (js)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

HUGH MAURICE ALLEN WADE,

Civil Action No. 15-8925 (RMB)

Petitioner,
MEMORANDUM AND ORDER

v.
WARDEN FCI FAIRTON,
Respondent.

This matter comes before the Court upon Petitioner’s letter
request to waive the time required to file an appeal. (ECF No.
17.)

For

the

reasons

stated

herein,

the

Court

will

grant

Petitioner’s request, and extend the time for Petitioner to file
a notice of appeal until fourteen (14) days from the date of
entry of this Memorandum and Order, pursuant to Federal Rule of
Appellate Procedure 4(a)(5)(A).
I.

BACKGROUND
On October 31, 2016, the Court issued an Opinion and Order,

denying

Petitioner’s

habeas

petition.

(ECF

Nos.

15,

16.)

On

January 3, 2017, Petitioner filed a letter request to waive the
time

required

Petitioner’s

to
letter

file

an

request

appeal.
is

1 

(ECF

undated,

No.
it

17.)
arrived

Although
in

an

envelope postmarked December 28, 2016. (Id.) In support of his
motion, Petitioner stated:
I was recently advised via the court’s
opinion, that the above captioned case was
denied.
Based on the fact that the mail
initially was mailed to Ft. Dix, I am asking
the court to waive the time requirement for
filing an appeal.
I am currently hospitalized in a federal
medical center, and this is the first day I
have had enough energy to respond to the
court’s decision.
(ECF No. 17, at 1-2.)
II.

GOVERNINING LAW
Requests to extend the time to appeal are governed by Fed.

R. App. P. 4. “[T]he timely filing of a notice of appeal in a
civil

case

is

a

jurisdictional

requirement.”

See

Bowles

v.

Russell, 551 U.S. 205, 213 (2007). “[W]hen an appeal is taken
beyond the time set out in the Rule, an appellate court is
without jurisdiction to entertain and decide it.” Id. In a civil
case, with certain exceptions not applicable here, the notice of
appeal required by Fed. R. App. P. 3 must be filed with the
district clerk within thirty days after entry of the judgment or
order appealed from.

See Fed. R. App. P. 4(a)(1).

“Rule 4(a)(5)(A) states, ‘[t]he district court may extend
the time to file a notice of appeal if: (i) a party so moves no
later than 30 days after the time prescribed by this Rule 4(a)
expires; and (ii) regardless of whether its motion is filed
2 

before or during the 30 days after the time prescribed by this
Rule 4(a) expires, that party shows excusable neglect or good
cause.’” Allen v. Vaughn, 298 F. App'x 130, 133 (3d Cir. 2008)
(citing Fed. R. App. P. 4(a)(5)(A). “No extension under . . .
Rule 4(a)(5) may exceed 30 days after the prescribed time or 14
days

after

the

date

when

the

entered, whichever is later.”

order

granting

the

motion

is

Fed. R. App. P. 4(a)(5)(C).

III. ANALYSIS
Here,
appeal,

Petitioner

given

the

moved

benefit

to
of

extend

the

the

time

prisoner

to

mailbox

file

an

rule,1

on

December 28, 2016, when the envelope was postmarked. (ECF No. 17
at 4.) This Court’s judgment on Petitioner’s petition under 28
U.S.C. § 2241 was entered on October 31, 2016. Pursuant to Fed.
R.

App.

P.

4(a)(1)(A),

Petitioner’s

notice

of

appeal

was

required to be filed with the district clerk by December 1,
2016, thirty days after entry of the judgment or order appealed
from, as calculated under Fed. R. Civ. P. 6(a)(1). Fed. R. App.
P. 4(a)(5)(A) requires a party to move to extend the time to
appeal no later than thirty days after when the notice of appeal
was

required

Based

on

the

to

be

filed,

December

28,

in

this
2016

case,

December

postmark

on

the

31,

2016.

envelope

1

The federal prison mailbox rule provides that a pro se
prisoner’s petition is deemed filed at the moment he delivers it
to prison officials for mailing to the district court. Burns v.
Morton, 134 F.3d 109, 113 (3d Cir. 1998).
3 

containing Petitioner’s request to extend the time to appeal, he
met the time requirements of Rule 4(a)(5)(A).
Petitioner must also meet the excusable neglect or good
cause requirement of Rule 4(a)(5)(A)(ii). Petitioner has shown
good cause to extend the time to appeal because the Opinion and
Order which he seeks to appeal were mailed to Fort Dix in New
Jersey after he was transferred to the Federal Medical Center in
Rochester, Minnesota.

Petitioner was deprived of time to file a

notice of appeal through no fault of his own, as he had timely
notified the Court of his change of address.

Therefore, the

Court can grant Petitioner’s request to extend the time to file
a notice of appeal.
Rule 4(a)(5)(C) limits the extension to “30 days after the
prescribed

time

or

14

days

after

the

date

when

the

granting the motion is entered, whichever is later.”

order
Thirty

days after the prescribed time, December 31, 2016, has passed.
This Court is limited to granting a fourteen day extension,
beginning when this Memorandum and Order is entered.
IT IS therefore on this 13th day of January 2017,
ORDERED

that

the

Clerk

shall

reopen

this

matter

for

consideration of Petitioner’s request to extend time to file a
notice of appeal; and it is further
ORDERED that Petitioner’s request to extend time to file a
Notice of Appeal (ECF No. 17) is granted, pursuant to Fed. R.
4 

App. P. 4(a)(5)(A); Petitioner shall have fourteen days from the
date this Memorandum and Order is entered to file his Notice of
Appeal with the district clerk in accordance with Fed. R. App.
P. 4(a)(1); and it is further
ORDERED that the Clerk shall mail a copy of this Memorandum
and

Order

to

Petitioner

at

the

Federal

Medical

Center

Rochester, Minnesota by regular U.S. Mail; and it is further
ORDERED that the Clerk shall close this matter.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District

5 

in