United States District Court, E.D. Tennessee
MEMORANDUM & ORDER
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.
MOTION FOR LEAVE TO APPEAL IN FORMA
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.
CORRECTION OF THE COURT'S PREVIOUS ORDER
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.
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].
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].
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 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].
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
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].
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.
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).
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].
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 ...