Small v. Lindamood

Filing 26

ORDER REQUIRING ADDITIONAL INFORMATION. Signed by Chief Judge S. Thomas Anderson on 10/10/17. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
MICHAEL SMALL,
Petitioner,
v.
CHERRY LINDAMOOD,
Respondent.

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Case No. 1:14-cv-01246-STA-egb

ORDER REQUIRING ADDITIONAL INFORMATION
Michael Small, a Tennessee state prisoner, filed a petition under 28 U.S.C. § 2254
seeking habeas corpus relief. In an order entered on July 10, 2017, the Court dismissed the
petition. (ECF No. 21.) Judgment was entered that same day. (ECF No. 22.) Petitioner filed a
notice of appeal on August 28, 2017 (ECF No. 23), which was more than thirty days after the
entry of judgment. See Rule 4(a) (1)(A) of the Federal Rules of Appellate Procedure (providing
that in a civil case the notice of appeal must be filed in the district court within thirty days after
the judgment or order appealed from is entered).
This matter is now before the Court on remand from the Court of Appeals (ECF No. 25)
for a determination as to whether a statement in Petitioner’s notice of appeal that his “prison
keeps going on lockdown due to inmate violence” and that he needs more time to research what
is required to appeal the denial of his petition should be construed as a motion for an extension of
time in which to file a notice of appeal and, if so, whether the motion should be granted under
Fed. R. App. 4(a)(5).
Rule 4(a)(5) applies to a motion for extension of time and provides:
(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.

(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or
(3) may be ex parte unless the court requires otherwise. If the motion is filed after
the expiration of the prescribed time, notice must be given to the other parties in
accordance with the local rules.
(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed
time or 10 days after the date when the order granting the motion is entered,
whichever is later.
Fed. R. App. P. 4(a)(5).
Even if the notice of appeal is construed as a motion for an extension of time to file a late
notice of appeal, the Court cannot ascertain from Petitioner’s filing whether sufficient grounds
exist for the Court to grant the motion. Although Petitioner states that the “prison keeps going
on lockdown due to inmate violence,” (Not. p. 1, ECF No. 23), he does not describe how the
lockdown impacted his failure to file a timely notice of appeal or present any allegations that he
was denied access to legal material or he that lacked the ability to prepare his own notice of
appeal. There is no indication that Petitioner was denied access to the prison law library after he
received the judgment in this action or that he diligently researched the procedure for filing a
timely notice of appeal. Absent a showing of excusable neglect or good cause for filing late, it
would be an abuse of discretion to grant the extension of time. See Baker v. Raulie, 879 F.2d
1396 (6th Cir. 1989).

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The Court will grant Petitioner thirty (30) days from the entry of this order in which to
supplement his filing to provide specific details as to why good cause or excusable neglect exist
such that his failure to file a timely notice of appeal should be excused. Failure to respond to this
order will result in a finding that good cause or excusable neglect do not exist without further
notice to Petitioner.
The Clerk is DIRECTED to forward a copy of this order to the Sixth Circuit Court of
Appeals.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: October 10, 2017

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