Nelson v. Douma

Filing 34

ORDER signed by Judge Pamela Pepper on 1/31/2018. 33 Petitioner's motion for extension of time to file notice of appeal GRANTED. 24 Petitioner's motion for leave to appeal without prepayment of the filing fee GRANTED. (cc: all counsel, via mail to Kelsey Nelson at New Lisbon Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

KELSEY NELSON,
Petitioner,
v.

Case No. 16-cv-476-pp

TIMOTHY DOUMA,
Respondent.

ORDER GRANTING MOTION FOR LEAVE TO APPEAL WITHOUT
PREPAYMENT OF THE FILING FEE (DKT. NO. 24) AND GRANTING MOTION
FOR EXTENSION OF TIME TO FILE APPEAL (DKT. NO. 33)
______________________________________________________________________________
On August 28, 2017, this court granted the respondent’s motion to
dismiss the petitioner’s petition for writ of habeas corpus, denied a certificate of
appealability and dismissed the case. Dkt. No. 22. The court entered judgment
the same day. Dkt. No. 23. On October 2, 2017, the court received from the
petitioner a motion for leave to appeal without prepayment of the filing fee. Dkt.
No. 24. The court did not receive his notice of appeal, however, until October
13, 2017—nine days after the clerk’s office wrote him a letter (dkt. no. 26),
notifying him that it hadn’t received the notice of appeal. Dkt. No. 27. Once it
received the notice of appeal, the clerk’s office transmitted the appeal to the
Seventh Circuit Court of Appeals, and that court assigned the appeal an
appellate case number. Dkt. Nos. 30, 31. Two weeks later, the petitioner filed a
motion for extension of time to file an appeal. Dkt. No. 33. The following day,
the Seventh Circuit directed the clerk of court to transfer the motion for
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extension of time to this court for decision. Dkt. No. 32. The court will grant
the petitioner’s motion for extension of time, and will grant his motion to
appeal without prepayment of the filing fee.
I.

Motion for Extension of Time to File Appeal (Dkt. No. 33)
“A timely notice of appeal is a prerequisite to appellate review.” McCarty

v. Astrue, 528 F.3d 541, 544 (7th Cir. 2008) (citations omitted). Compliance
with time limitations is important, because the filing of the notice “is an event
of jurisdictional significance—it confers jurisdiction on the court of appeals and
divests the district court of its control of the case involved in the appeal.”
Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). In a civil
case in which the United States is not a party, a litigant must file a notice of
appeal within thirty days from the entry of judgment. 28 U.S.C. § 2107(a); Fed.
R. App. P. 4(a)(1)(A). The district court may extend that time if, no later than
thirty days after the original deadline for the filing of notice of appeal, the
appealing party asks the court to do so, and that party shows “excusable
neglect or good cause” for not filing by the original deadline. Fed. R. App. P.
4(a)(5).
The court entered judgment on August 28, 2017; the petitioner did not
sign his notice of appeal until October 8, 2017, dkt. no. 27 at 1, and the court
did not receive it until October 13, 2017. The petitioner, therefore, did not file
his notice of appeal within the thirty-day deadline. He did, however, file this
motion for an extension of time within thirty days after the original thirty-day
deadline expired (the original deadline expired on September 27, 2017, and the
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court received the motion for an extension of time on October 26, 2017—just
inside the deadline). That means that the court can accept his appeal, but only
if the plaintiff has shown that he had good cause for missing the original thirtyday deadline, or if he can show that missing the deadline was due to his
excusable neglect.
A court may extend the deadline for filing an appeal “for good cause” only
if the appealing party missed the thirty-day deadline through no fault of his
own. See Sherman v. Quinn, 668 F.3d 421, 425 (7th Cir. 2012). A court may
extend the deadline based on “excusable neglect” if the court finds that the
untimely filing was the appellant’s fault, but that there is a reason to excuse
that fault. In deciding whether someone’s neglect to timely file was “excusable,”
courts look at things like the length of the delay, and how that delay will
impact the case, the reason for the delay (whether the delay was within the
appellant’s control), whether the appellant acted in good faith, and whether
granting the extension of time would prejudice the other side. Id. at 425-26
(quoting McCarty v. Astrue, 528 F.3d 541, 544 (7th Cir. 2008)).
The petitioner says that he asked the librarian at the New Lisbon
Correctional Institution for “the notice of appeal to the U.S. Court of Appeals
for the Seventh Circuit forms.” Dkt. No. 33 at 1. He also says that he told the
librarian that the notice of appeal “was to be submitted to the United States
District Court for the Eastern District of Wisconsin.” Id. He asserts that the
librarian gave him the wrong form—the librarian gave him the form for asking
to proceed without prepaying the filing fee in the district court. Id. He
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maintains that he has “proof in the form of a disbursement request submitted
for copies for the notice of appeals of the Seventh Circuit to be submitted to the
U.S. District Court for the Eastern District of Wisconsin.” Id. at 2.
The application to proceed without paying the filing fee, which the court
received on October 2, 2017, is signed by the petitioner, and dated September
27, 2017. Dkt. No. 24. That was the day his notice of appeal was due. It
appears to the court that the petitioner thought that he was filing a notice of
appeal, when instead he mistakenly filed a request to proceed without
prepaying the filing fee.
The court must determine whether the petitioner’s (mistaken)
assumption that the prison librarian gave him a notice of appeal form
constitutes either excusable neglect or good cause. The court cannot find that
the petitioner had “good cause” for missing the thirty-day deadline. This is not
a situation where the petitioner timely mailed his notice of appeal, but the mail
was stolen, or the mail was damaged in bad weather. So the question is
whether the petitioner missed the deadline due to excusable neglect.
The Seventh Circuit has explained that excusable neglect “will generally
be found where a party in good faith relied on the actions and representations
of the district court or its officers, and consequently failed to file a timely notice
of appeal. Redfield v. Continental Cas. Corp., 818 F.2d 596, 603 (7th Cir.
1987). The prison librarian is not a district court officer. But it makes sense
that the petitioner would rely on her as an authority figure who would have the
appropriate knowledge of which forms to file, and would give him the right one.
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The petitioner completed the form the librarian gave him, and he signed it on
the date his notice of appeal was due. The court received it only five days
later—not a particularly long delay. (In fact, under the “mailbox rule,” an
inmate is deemed to have “filed” his notice of appeal “at the moment the
prisoner delivers it to a prison official for mailing to the court.” Ray v.
Clements, 700 F.3d 993, 1002 (7th Cir. 2012) (citing Houston v. Lack, 487 U.S.
266, 275-76 (1988)). While the petitioner did not provide the court with
evidence that he gave the document he signed on September 27, 2017 to the
prison officials to mail that day, the fact that the court received it five days
later supports that conclusion.)
The court also finds that the petitioner acted in good faith. On October 4,
2017, the clerk’s office sent the petitioner a letter, telling him that while the
clerk had received his motion to proceed without prepaying the filing fee, it had
not received his notice of appeal. Dkt. No. 26. Nine days later, the court
received the actual notice of appeal, and it was dated October 8, 2017—four
days after the clerk’s office mailed the letter notifying the petitioner of the error.
Dkt. No. 27. The petitioner acted promptly when he realized that there was a
problem. He also followed up by filing this motion for an extension of time.
Finally, the court does not see that the slight delay in the court’s
receiving the notice of appeal will prejudice the opposing party. The notice of
appeal arrived at the court a total of eleven days after the thirty-day deadline.
In the lifetime of an appeal, this is not an amount of time that would prejudice
the respondent’s ability to defend the judgment.
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For all of these reasons, the court finds that the petitioner’s failure to file
his notice of appeal within the thirty days prescribed by the statute and rules
was the result of excusable neglect, and will grant his motion to extend that
deadline. The court will deem the petitioner’s notice of appeal timely filed.
II.

Motion for Leave to Appeal Without Prepayment of the Filing Fee
(Dkt. No. 24)
In order to grant the petitioner’s motion for leave to appeal without

prepayment of the filing fee, the court must find that the petitioner is indigent
and that he has appealed in good faith for purposes of Fed. R. App. P. 24(a)(3).
See 28 U.S.C. § 1915(a)(3) (“An appeal may not be taken in forma pauperis if
the court certifies in writing that it is not taken in good faith.”). The petitioner’s
affidavit demonstrates that he is indigent, so the court must determine whether
he has taken his appeal in good faith.
A person files an appeal in good faith if “a reasonable person could
suppose that the appeal has some merit.” Walker v. O'Brien, 216 F.3d 626, 632
(7th Cir. 2000). This is a lower standard than the standard a habeas petitioner
must meet to obtain a certificate of appealability, and the fact that this court
declined to issue a certificate of appealability does not mean that the petitioner
appealed in bad faith. Id. at 631-32. The petitioner needs to present only a
single, non-frivolous issue on appeal in order to establish that he did not
appeal in bad faith. See Dixon v. Pitchford, 843 F.2d 268, 270 (7th Cir. 1988).
The petitioner identifies three issues for appeal: (1) he disputes the
court’s ruling that his petition was time-barred; (2) he argues that the court
erred denying him a certificate of appealability; and (3) he asserts that he has a
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learning disability. Dkt. No. 24 at 1. The court found that the petition was
time-barred because the petitioner’s direct review concluded in 2000, and he
filed a federal habeas petition—and withdrew that petition—in 2002. Dkt. No.
22 at 3. After considering each of the petitioner’s filings over the years, the
court concluded that his petition, filed nineteen years after his conviction, was
untimely under any view of the facts. Id. at 9. The court considered (and
rejected) the petitioner’s assertions that he had a learning disability in the
context of equitable tolling. Id. at 11. But calculating the statute of limitations
for federal habeas claims, and the role equitable tolling plays in those
calculations, is complex, and the court has no reason to believe that the
petitioner is not acting in good faith in challenging the court’s conclusion. A
reasonable court even could disagree with this court’s decision not to issue a
certificate of appealability.
Because the petitioner is indigent, and because the court finds that he
has brought his appeal in good faith, the court will grant his application to
proceed with his appeal without prepaying the filing fee.
III.

Conclusion
The court GRANTS the petitioner’s motion for extension of time to file a

notice of appeal. Dkt. No. 33.
The court GRANTS petitioner’s motion for leave to appeal without
prepayment of the filing fee. Dkt. No. 24.

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Dated in Milwaukee, Wisconsin this 31st day of January, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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