Nolan v. Holloway (VVV)

Filing 24

MEMORANDUM AND ORDER denying 23 Motion for Leave to Appeal in forma pauperis. Signed by District Judge Pamela L Reeves on 4/6/18. (copy mailed to Dameion Nolan) (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
DAMEION NOLAN,
Petitioner,
v.
JAMES HOLLOWAY,
Respondent.

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No. 3:14-cv-00375
REEVES/POPLIN

MEMORANDUM & ORDER
This is a pro se prisoner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Now before the Court is Petitioner’s motion for leave to proceed in forma pauperis on appeal [Doc.
23]. For the reasons set forth below, this motion [Doc. 23] will be DENIED and the Court’s
previous order [Doc. 22] will be CORRECTED in the manner set forth below.
I.

MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS

On August 8, 2017, the Court denied Petitioner’s § 2254 motion and dismissed this action
with prejudice [Docs. 13 and 14]. In its order dismissing this action, the Court noted that, for the
reasons set forth in its memorandum opinion, a certificate of appealability would not issue and
therefore stated that it would deny Petitioner leave to proceed in forma pauperis on appeal [Doc.
14 p. 1]. The Court sees no reason to amend that order and Petitioner’s motion for leave to proceed
in forma pauperis on appeal [Doc. 23] will therefore be DENIED.
II.

CORRECTION OF THE COURT’S PREVIOUS ORDER

In reviewing its previous order and the record as a whole, the Court notes that its previous
order [Doc. 22] could have been more clear regarding the reasons for the Court’s finding that
Petitioner did not show excusable neglect or good cause for the Court to grant Petitioner’s motion
to extend the time to file an appeal under Rule 4(a)(6) and the fact that the Court therefore denied

Petitioner this relief. Accordingly, the Court will again review the history of this case, which has
become something of a procedural quagmire, and correct its previous order [Doc. 22] in an effort
to clarify the record for purposes of Petitioner’s appeal.
On September 11, 2017, thirty-four days after the Court’s denial of the § 2254 motion and
dismissal of this case, Petitioner filed a notice of appeal and a motion for the Court to extend
Petitioner’s time to file his notice of appeal [Doc. 15]. As Petitioner’s notice of appeal was
untimely, the United States Court of Appeals for the Sixth Circuit remanded this matter to the
Court for the limited purpose of ruling on Petitioner’s motion for an extension of time to file a
notice of appeal [Doc. 16].
The Court, however, could not determine from Petitioner’s motion for extension whether
Petitioner’s failure to timely file his notice of appeal was due to excusable neglect or for good
cause as required for the Court to grant a motion to extend the time to file a notice of appeal under
Rule 4(a)(5)(A) of the Federal Rules of Appellate Procedure. Accordingly, on November 17,
2017, the Court entered a show cause order requiring Petitioner to show cause as to why his motion
for extension should not be denied [Doc. 20].
On November 29, 2017, Petitioner responded to this order [Doc. 21]. In his response,
Petitioner asserted that during most of the time that his § 2254 motion was pending, he was housed
at the West Tennessee State Penitentiary, where there were disturbances that caused complete
lockdowns, included one that lasted several months [Id. at 2]. Petitioner stated that he was moved
to his current place of confinement, Whiteville Correctional Facility, in the spring of 2017, and
that various disturbances then interrupted normal activity, resulting in some restricted times during
which mail delivery was suspended [Id. at 1–2]. Petitioner also claimed that Whiteville was on
lockdown for several days in spring and summer 2017, including an extended term that lasted from
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early August through September 4, 2017 [Id. at 2]. Petitioner blames these periodic lockdowns
and/or occasional restrictions on mail delivery at Whiteville for his failure to update the Court with
his new address [Id. at 1–2].
Due to Petitioner’s failure to update his address, he did not receive the Court’s mail
containing the dismissal order entered on August 8, 2017, until late in the day on September 6,
2017 [Id. at 4]. Petitioner specifically acknowledges that, when he received the dismissal order on
September 6, 2017, he learned that his opportunity to appeal that order expired the next day on
September 7, 2017 [Id.].
Regardless, Petitioner argues that he was entitled to three additional days to file his notice
of appeal under Rule 26(c) of the Federal Rules of Appellate Procedure because he was a prisoner
and service was made by mail [Id. at 4–5]. Petitioner also asserts that as September 10, 2017, was
a Sunday, his September 11, 2017 notice of appeal and motion for extension of time to file his
appeal was timely [Id. at 5].
Despite Petitioner’s acknowledgement that he knew when he received the Court’s order on
September 6, 2017, that he had to file his notice of appeal the next day [Id. at 4], Petitioner has not
set forth any explanation for his failure to do so. Petitioner has not alleged that any lockdown or
mail restrictions were in effect on or about September 6 or 7. Moreover, Petitioner’s notice of
appeal contains only two sentences, one stating that Petitioner seeks permission to appeal the
Court’s order denying his § 2254 and the second stating the date on which the Court’s dismissal
order was entered, and therefore would not take long to prepare [Doc. 15].

Thus, the record

contains no reason that Petitioner could not have timely filed a notice of appeal by placing such in
the hands of prison officials on September 7, 2017.

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Further, Petitioner’s assertion that his notice of appeal was still timely because he had an
additional three days to file it under Rule 26(c) of the Federal Rules of Appellate Procedure is
incorrect. As the Court previously noted [Doc. 20 p. 1–2], under Rule 4(a) of the Federal Rules
of Appellate Procedure, Petitioner had to file his notice of appeal within thirty days of entry of the
judgment, Fed. R. App. P. 4(a)(1)(A). Neither Rule 6(d) of the Federal Rules of Civil Procedure
nor Rule 26(c) of the Federal Rules of Appellate procedure extends the time for filing a notice of
appeal. Ultimate Appliance CC v. Kirby Co., 601 F.3d 414, 416 (6th Cir. 2010).
As such, the Court found that Petitioner’s response to the show cause order did not
demonstrate that his failure to file a timely notice of appeal was due to excusable neglect or good
cause [Doc. 22 p. 2]. Regardless, on December 12, 2017, the Court entered an order stating that it
liberally construed Petitioner’s motion for extension of time to file a notice of appeal [Doc. 19] to
also request that the Court to reopen the time for appeal pursuant to Rule 4(a)(6) [Doc. 22 p. 2].
The Court found that Petitioner met the Rule 4(a)(6) requirements for reopening an appeal and
therefore granted Petitioner’s motion to extend the time for appeal [Doc. 19] only to the extent that
it reopened the time for Petitioner to file a notice of appeal for fourteen days [Doc. 22 p. 2].1
Accordingly, the Court’s previous order [Doc. 22] will be CORRECTED pursuant to Rule
60(a) to set forth the above reasons for the Court denying Petitioner relief under Rule 4(a)(5) of
the Federal Rules of Appellate Procedure and to state that Petitioner’s motion to extend the time
for appeal [Doc. 19] is DENIED in part to the extent that Petitioner sought to extend the time to
file a notice of appeal pursuant to Rule 4(a)(5) due to Petitioner’s failure to show excusable neglect
or good cause.

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As of the date of entry of this order, however, Petitioner has not filed a new notice of

appeal.
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III.

CONCLUSION

For the reasons set forth above:
1.

Petitioner’s motion for leave to appeal in forma pauperis [Doc. 23] is DENIED;

2.

The Court’s previous order [Doc. 2] is CORRECTED to include the above factual

and

and legal analysis and to state that Petitioner’s motion to extend the time for appeal [Doc. 19] is
DENIED in part to the extent that Petitioner sought to extend the time to file a notice of appeal
pursuant to Rule 4(a)(5) due to Petitioner’s failure to show excusable neglect or good cause.

SO ORDERED.
ENTER:

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UNITED STATES DISTRICT
A S S
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UNITED STATES DISTRICT JUDGE

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