Thomas v. United States of America

Filing 33

ORDER re: 32 Letter filed by Dwayne Thomas. For the foregoing reasons, Thomas's motion for an extension of time to file a notice of appeal is granted. Pursuant to Federal Rule of Appellate Procedure 4(a)(5), Thomas must file any notice of appeal by April 23, 2021. Chambers staff will mail a copy of this Order to Thomas. SO ORDERED. (Signed by Judge William H. Pauley, III on 4/9/2021) (kv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DWAYNE THOMAS,
Petitioner,
-againstUNITED STATES OF AMERICA,
Respondent.

17cv781
12cr174
ORDER

WILLIAM H. PAULEY III, Senior United States District Judge:
Petitioner Dwayne Thomas, an incarcerated inmate, moves for an extension of
time to file a notice of appeal of this Court’s January 19, 2021 Memorandum & Order denying
his 28 U.S.C. § 2255 habeas petition. (ECF No. 31.)
Pursuant to Federal Rule of Appellate Procedure 4(a)(1)(B), Thomas was required
to file a notice of appeal within sixty days of this Court’s Memorandum & Order. However,
Federal Rule of Appellate Procedure 4(a)(5) provides that “[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 [Rule 4(a)(1)] expires; and (ii) . . . [the] party shows excusable neglect or good
cause.”
This Court docketed the Memorandum & Order on January 19, 2021 and Thomas
moved for an extension on April 6, 2021—17 days after a notice of appeal would be considered
timely under Rule 4(a)(1)(A). Thus, Thomas satisfies Rule 4(a)(5)(A)(i). For good cause under
Rule 4(a)(5)(ii), Thomas cites that he “was not provided with a copy of [this Court’s] decision”
and that he first learned of it on March 24, 2021. (ECF No. 32.) It appears that Thomas’s

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counsel retired from the practice of law and therefore Thomas did not receive notice. This Court
finds that Thomas’s delayed receipt of the January 29, 2021 Memorandum & Order constitutes
good cause under Rule 4(a)(5)(A)(ii).
For the foregoing reasons, Thomas’s motion for an extension of time to file a
notice of appeal is granted. Pursuant to Federal Rule of Appellate Procedure 4(a)(5), Thomas
must file any notice of appeal by April 23, 2021. Chambers staff will mail a copy of this Order
to Thomas.
Dated: April 9, 2021
New York, New York

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