Weber v. Warden Warren Correctional Institution

Filing 18

ORDER CONSTRUING DOCUMENT 14 AS A MOTION FOR AN EXTENSION OF TIME AND A NOTICE OF APPEAL; GRANTING THE MOTION FOR GOOD CAUSE SHOWN NUNC PRO TUNC; AND FINDING PETITIONER HAS TIMELY FILED HIS NOTICE OF APPEAL. Signed by Magistrate Judge Michael J Newman on 08/03/2012. (kf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JOHN PAUL WEBER, III,

:

Case No. 3:10-cv-49

:

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Petitioner,
vs.
WARDEN, WARREN
CORRECTIONAL FACILITY,

:

Respondent.
:
______________________________________________________________________________
ORDER CONSTRUING DOCUMENT 14 AS A MOTION FOR AN EXTENSION OF
TIME AND A NOTICE OF APPEAL; GRANTING THE MOTION FOR GOOD CAUSE
SHOWN NUNC PRO TUNC; AND FINDING PETITIONER HAS TIMELY FILED HIS
NOTICE OF APPEAL
______________________________________________________________________________
This matter is before the Court on remand from the Sixth Circuit pursuant to Judge
Martin’s Order “for the limited purpose of determining whether the notice of appeal [filed in this
pro se 28 U.S.C. § 2254 habeas corpus case] should be treated as a Rule 4(a)(5) motion for an
extension of time, and if appropriate, for a ruling on the motion.” Doc. 17. On April 11, 2012,
this Court dismissed Plaintiff’s petition for a writ of habeas corpus and entered judgment in favor
of Respondent. See docs. 12, 13. In that Order, the Court granted Petitioner a certificate of
appealability on his first ground for relief and leave to proceed in forma pauperis on appeal. See
doc. 12. Pursuant to Fed. R. App. P. 4(a)(1)(A), Petitioner’s notice of appeal was due to be filed
on or before May 11, 2012.
On June 6, 2012, Petitioner filed a letter (doc. 14) that was construed by this Court as a
notice of appeal. In light of Judge Martin’s Order, the Court now finds that Petitioner’s letter
(doc. 14) should be treated also as a Rule 4(a)(5) motion for an extension of time to file a notice of
appeal. The motion was timely filed within the thirty-day period set forth in Rule 4(a)(5) (i.e.,

filed on or before June 10, 2012), and based on the reasons cited in Judge Martin’s Order,
Petitioner has shown the necessary good cause. See Fed. R. App. P. 4(a)(5)(A). Accordingly,
the Court GRANTS Petitioner a thirty-day extension to file a notice of appeal pursuant to Rule
4(a)(5) nunc pro tunc.
The Court further finds that Petitioner’s letter (doc. 14) satisfies the requirements for a
notice of appeal under Fed. R. App. P. 3(c)(1): it identifies the party taking the appeal; it
designates the Order that is being appealed; and it identifies the Sixth Circuit as the court to which
the appeal is taken. Accord Fed. R. App. P. 3(c)(4) (clarifying that notices of appeal are liberally
construed). Accordingly, Petitioner’s letter shall constitute a notice of appeal, which the Court
deems timely filed.

s/Michael J. Newman

August 3, 2012

United States Magistrate Judge

2