Druery v. Quarterman

Filing 20

ORDER DENYING 17 MOTION for Extension of Time to File Notice of Appeal.(Signed by Judge Gray H. Miller) Parties notified.(gseidl)

D r u e r y v. Thaler

D o c . 20

IN THE UNITED STATES DISTRICT COURT F O R THE SOUTHERN DISTRICT OF TEXAS H O U S T O N DIVISION M ARCUS RAY TYRONE DRUERY, P e titio n e r , v. R ICK THALER, R e s p o n d e n t. § § § § § § § § §

C IVIL ACTION NO. H-09-835

ORDER DENYING MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL
O n July 26, 2010, this Court entered judgment for the Respondent and dismissed M a rc u s Ray Tyrone Druery's petition for a writ of habeas corpus. If Druery wished to appeal th e judgment, he was required to file a notice of appeal within 30 days, or no later than A u g u s t 25, 2010. Fed. R. App. P. 4(a)(1)(A). Druery, who has been represented by attorney D a v id A. Schulman throughout his federal habeas corpus proceedings, did not file a notice o f appeal by August 25. On September 3, 2010, Druery, through his attorney, filed a motion f o r an extension of time to file his notice of appeal. R u le 4(a)(5)(A) of the Federal Rules of Appellate Procedure grants a district court a u th o rity to extend the time to file a notice of appeal if the party moves for the extension w ith i n 30 days after the time to file the notice expires and the party demonstrates good cause o r excusable neglect for his failure to file a timely notice. Druery's motion comes less than

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3 0 days after his time expired, but he fails to demonstrate either good cause or excusable n e g lec t. M r. Schulman states that he was out of his office for most of the week of July 26, 2 0 1 0 , but acknowledges that he received electronic notice of the judgment on July 29, 2010, o n ly three days after judgment was entered. He also claims at some length that his client is m e n t a lly ill and that he sought expert advice regarding Druery's alleged mental illness. W h ile this would appear to be an argument that Druery's alleged mental illness constitutes g o o d cause for the failure to file a timely notice, Schulman acknowledges that Druery's m e n ta l status was not the reason he failed to file. Rather, Schulman admits that "[n]o action w a s taken on the instant case based on [Schulman]'s mistaken belief that he had already e F ile d the notice of appeal." Motion for Extension of Time at 3. The provisions of Rule 4(a) are mandatory and jurisdictional. T h e "excusable neglect" standard of that rule is intended to be a strict one. A strict construction of Rule 4(a)(1) necessarily and lo g ic a lly compels us to erect a high threshold in our d eterm in atio n of "excusable neglect" under Rule 4(a)(5). L o o s e ly interpreting "excusable neglect" would convert the 3 0 -d a y period for appeal provided in FRAP 4(a) into a 60-day o n e - a result clearly not intended by the Rule's framers. A llie d Steel v. City of Abilene 909 F.2d 139, 142-43 (5 th Cir. 1990) (internal citations and q u o ta tio n marks omitted). Under this strict standard, Schulman's confusion about whether h e did or did not file the notice is not excusable neglect. See United States v. Clark, 51 F.3d 4 2 (5 th Cir. 1995).

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D ru e ry's alleged mental illness does not demonstrate either good cause or excusable n e g le c t. If Schulman was unsure whether his client wanted to appeal, he could have filed a tim e ly notice to preserve Druery's rights, and later withdrawn the notice if he determined that D ru e ry did not wish to proceed and was competent to waive his appeal. As Schulman c o n c e d e s in his motion, Druery has never indicated that he does not wish to pursue all p o s s ib le appeals. Nor does any implied argument that Schulman was so distracted by D ru e ry's alleged mental illness strengthen Schulman's position. A lm o s t any party to any dispute could argue truthfully that u n iq u e or extraordinary circumstances had distracted its a tte n tio n . District courts would have no principled means of d is ti n g u is h in g among circumstances. Requiring courts c o n sta n tly to adjudicate claims of extraordinary or unique c irc u m sta n c e s would defeat the purpose of the time limitation in R u le 4(a)(1)-to provide a definite point at which, in the absence o f a notice of appeal, litigation will cease. Rule 4(a)(5) clearly in d ic a te s that potential appellants may not regard the period d u r i n g which a district court may extend the time for filing a n o tice of appeal as a further period in which to ponder their o p tio n s . A llie d Steel, 909 F.2d at 143 (internal citations omitted). Accordingly, P e titio n e r's Motion for Extension of Time to File Notice of Appeal (Docket Entry 17) is DENIED. S ig n e d at Houston, Texas, on September 21, 2010.

Gray H. Miller U n ite d States District Judge

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