FOX v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al

Filing 23

MEMORANDUM AND ORDER that Petitioner's 19 Motion to file an appeal out of time is granted; Petitioner's 21 Motion for Leave to Proceed in forma pauperis is denied without prejudice; The Clerk shall serve this memorandum and order on Petitioner by regular mail and the Clerk shall reclose this case. Signed by Judge Peter G. Sheridan on 1/8/2021. (abr, )

Case 3:18-cv-05860-PGS Document 23 Filed 01/08/21 Page 1 of 2 PageID: 686

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
MIASHARI FOX,
:
:
Petitioner,
:
Civ. No. 18-5860 (PGS)
:
v.
:
:
ATTORNEY GENERAL OF THE
:
MEMORANDUM AND ORDER
STATE OF NEW JERSEY, et al.,
:
:
Respondents.
:
____________________________________:
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
filed pursuant to 28 U.S.C. § 2254. On September 16, 2020, this Court denied Petitioner’s habeas
petition. (See ECF 18). Presently pending before this Court is Petitioner’s motion to file a notice
of appeal out of time (ECF 19), and a motion to proceed in forma pauperis on appeal. (See ECF
21). Considering these filings, the Clerk will reopen this case so they can be adjudicated. For the
following reasons, Petitioner’s motion to file a notice of appeal out of time is granted, but
Petitioner’s motion to proceed in forma pauperis on appeal is denied without prejudice.
As noted above, this Court denied Petitioner’s habeas petition on September 16, 2020. In
a document dated October 21, 2020, Petitioner filed her motion to file a notice of appeal out of
time as well as her actual notice of appeal. (See ECF 19 & 20). Petitioner states in her motion
that her movements within her prison have been limited due to the COVID-19 pandemic such
that it affected her ability to go to the prison law library and file a timely notice of appeal.
Generally, a petitioner must file his notice of appeal within thirty (30) days from the entry
of the order. See Fed. R. App. P. 4(a)(1)(A). However, Federal Rule of Appellate Procedure
4(a)(5)(A) permits a district court to extend the time to file a notice of appeal if: “(i) the party so
moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and (ii)

Case 3:18-cv-05860-PGS Document 23 Filed 01/08/21 Page 2 of 2 PageID: 687

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.”
Petitioner filed her motion within thirty days after the time prescribed by Rule 4(a)
expired. Furthermore, given the COVID-19 pandemic, Petitioner has adequately shown good
cause for not filing her notice of appeal within thirty days. Accordingly, the motion to file an
appeal out of time is granted.
Petitioner has also filed a motion to proceed in forma pauperis on appeal. The United
States Court of Appeals for the Third Circuit’s Local Rules though require a petitioner to attach a
certified copy of the prison account statement for the six-month period preceding the filing of the
notice of appeal. See 3d Cir. L. App. R. 24.1(c). Petitioner’s application fails to include such a
certified copy. Therefore, the application is incomplete and is denied without prejudice.
Accordingly, IT IS this 8th day of January, 2021,
ORDERED the Clerk shall reopen this case for the sole purpose of deciding Petitioner’s
outstanding motions; and it is further
ORDERED Petitioner’s motion to file an appeal out of time (ECF 19) is granted; and it is
further
ORDERED that Petitioner’s application to proceed in forma pauperis on appeal (ECF 21)
is denied without prejudice; and it is further
ORDERED that the Clerk shall serve this memorandum and order on Petitioner by
regular U.S. mail; and it is further
ORDERED the Clerk shall reclose this case.

s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.

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