TIGGS v. JOHNSON et al

Filing 30

OPINION & ORDER denying 25 Tigg's Motion for Extension of Time to File; denying 26 Tigg's Motion for Leave to Appeal in forma pauperis. etc. Signed by Judge Kevin McNulty on 6/25/2019. (dam, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No. 15-8664 (KiM)

ARTHUR L. TIGGS,
Petitioner,

OPINION & ORDER
STEVEN JOHNSON, et al.,
Respondents.

MCNULTY, District Judge.
On or about December 10, 2015, prose Petitioner Arthur L. Tiggs initiated this habeas
action in which he sought relief pursuant to 28 U.S.C.

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2254. (DE 1.) On March 8,2019, 1 denied

Tiggs’s habeas petition and denied him a certificate of appealability. (DEs 23 and 24.)
Approximately 91 days later, on June 7,2019,’ Tiggs filed a notice of appeal challenging my March

8th decision. (DE 27.) Tiggs concurrently filed two motions related to that appeal, both of which are
now pending beibre me: (1) a motion to file his appeal out of time (at DE 25); and (2) his motion to
proceed

in

formupaupens (“IFP”) on appeal2 (at DE 26). For the reasons detailed herein, I will

deny both motions.

Tiggs has certified that lie delivered his appeal-related documents “to authorities at New Jersey State Prison
for processing through the prison’s legal mail system” on June 7,2019. (See DE 27-I.) Under the federal
prisoner mailbox rule. “a document is deemed filed on the date it is given to prison officials for mailing.”
Pahon i’ Mahanoy, 654 F.3d 385, 391 n. 8 (3d Cir. 2011). Affording Tiggs all favorable inferences, I find
that June 7,2019 is the date on which he filed his notice of appeal and related motions.
Tiggs has not previously applied to this Court to proceed IFP. Tiggs submitted the £5.00 filing fee for his
habeas corpus petition on or about December 10, 2015. (See DE 4.) Tiggs, however, filed his notice of appeal
without paying the $505.00 filing fee. (See DE 26.)

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1. Motion to file appeal out of time
Tiggs seeks authorization to file his otherwise untimely appeal. (DE 25.) This motion is
governed by Rule 4 of the Federal Rules of Appellate Procedure (the “Appellate Rules”). Under
Appellate Rule 4(a)(1)(A). a “notice of appeal

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must be tiled with the district clerk within 30

days after entry of the judgment or order appealed from.” See Fed. R. App. P. 4(a)(1 )(A). Here, my
final order denying Tiggs’s habeas petition was filed on March 8, 2019. Pursuant to Rule
4(a)(1)(A), Tiggs had until April 8, 2019 to tile his notice of appeal. Id. His notice of appeal, filed
on June 7,2019, is therefore facially untimely.
lam, in limited circumstances, authorized to extend the 30-day filing deadline of Rule
4(a)(1)(A). Appellate Rule 4(a)(5) provides, in pertinent part, that:
(A) The 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 before or
during the 30 days after the time prescribed by this Rule
4(a) expires, that party shows excusable neglect or good
cause.

(C) No extension under this 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.
Id.

Because the thirtieth day from March 8,2019 was Sunday, April 7,2019, the deadline is deemed to
fall on the next non-holiday weekday, Monday. April 8,2019. See Fed. R. Civ. P. 6(a)(3)G).
2

Tiggs’s motion to extend his deadline to file his appeal, filed on June 7,2019, is untimely
under Appellate Rule 4(a)(5)(A)(i). because that motion was not tiled within thirty days after the
deadline to appeal (Le., on or before May 8,2019). For that reason alone, I am compelled to deny
the motion foran extension. See Ha/eli v. New Jersey Superior Court, No. 15-2514, 20)7 WL
1591845, at *2 (D.N.J. May 1,2017) (applying substantially the same analysis in denying
petitioner’s motion to extend his appeal deadline, and further noting that “Congress specifically
limited district courts’ ability to reopen the time for appeal”) (citing 28 U.S.C.

§

2107(c)).

Tiggs’s June 7. 2019 motion was not filed within the applicable deadline under Fed. R. App.
P. 4(a)(5XA)(i). Accordingly, the motion for extension of the time to appeal is denied,3
2. Tiggs’s motion to proceed hifonitapauperis on appeal
Tiggs also moves to proceed IFP on appeal. (DE 26.) 1 discuss it briefly.
This TFP motion is governed by two rules. First, Appellate Rule 24(a)(1) allows a district
court to grant a petitioner IFP status on appeal where the petitioner shows that he is unable to pay,
or to give security for, the fees and costs on appeal, and states the issues that he intends to present
on appeal. Second, Rule 24.1(c) of the Third Circuit’s Local Appellate Rules requires that habeas
petitioners seeking to proceed IFP on appeal must file “an affidavit of poverty
a certified statement of the prison account statement(s)
filing of the notice of appeal “Accord 28 U.S.C.

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accompanied by

for the 6 month period preceding the

l915(a)(2) (“A prisoner seeking to.

judgment in a civil action or proceeding without prepayment of fees or security therefor

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appeal a

...

shall

submit a certified copy of the trust fund account statement (or institutional equivalent) for the

Even if timely, the motion would face the additional requirement that the appellant show “excusable
neglect or good cause” for the delay. Fed. R. App. P. 4(a)(5)(A)(ii). Mr. Tiggs proffers that he is unlearned in
the law and that preparation of the notice of appeal has been hampered by delays in receiving assistance from
the Inmates Legal Association, Inc. (ILA). It is not necessary to rule on this contention, but I do note that the
notice of appeal is a simple, one-page document, that the petitioner is an experienced litigant, and that he has
represented himselfpro se in these proceedings.
j

prisoner for the 6-month period immediately preceding the filing of the complaint or notice of
appeal, obtained from the appropriate official of each prison at which the prisoner is or was
confined.”).
Tiggs’s motion for leave to proceed IFP on appeal does not include the requisite certified
prison account statement. (See, generally, DE 26.) I will therefore deny his motion to proceed in
foruzapauperis at this time. This denial is without prejudice to Tiggs refiling his motion in
accordance with requirements.
For the foregoing reasons, and for good cause shown,
IT IS this 25th day of June, 2019,
ORDERED that the Clerk of the Court shall reopen this matter for purposes of considering
Tiggs’s appeal-related motions; and it is further
ORDERED that Tiggs’s motion to file his appeal out of time (at DE 25) is DENIED; and it
is further
ORDERED that Tiggs’s motion for leave to proceed IFP on appeal (at DE 26) is DENIED;
and ills further
ORDERED that the Clerk shall provide Tiggs with blank copies of the following forms: (1)
an Affidavit Accompanying Motion for Permission to Appeal In Forum Pauper/s;5 and (2) a
Certification of Prison Account Statement;6 and it is further
ORDERED that the Clerk shall serve a copy of this Opinion & Order on Tiggs by regular
mail and shall mark this case as CLOSED.

KnMcNultyS

That form is available at www2.ca3.uscourts.gov/Iegacyuiles/ifp_affidavit.pdf.
That form is available at www.ca3.uscourts.gov/sites/ca3/files/IFP_Certification.pdf.

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