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Small v. Lindamood

United States District Court, W.D. Tennessee, Eastern Division

April 11, 2018

MICHAEL SMALL, Petitioner,
v.
CHERRY LINDAMOOD, Respondent.

          ORDER GRANTING MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL AND DIRECTING CLERK TO FORWARD NOTICE OF APPEAL TO COURT OF APPEALS

          S. THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner Michael Small's motion for an extension of time to file a notice of appeal. For the reasons that follow, the motion is GRANTED.

         BACKGROUND

         Small, a Tennessee state prisoner, filed a petition under 28 U.S.C. § 2254 seeking habeas corpus relief. (ECF No. 1.) On July 10, 2017, the Court denied the petition (ECF No. 21) and entered judgment for Respondent, Cherry Lindamood (ECF No. 22). On August 22, 2017, Petitioner mailed to the Sixth Circuit Court of Appeals a document titled “Motion to File Late Notice of Appeal and Application for Certificate of Appealability, ” in which he alleged that a prison lockdown prevented him from timely filing a notice of appeal. (ECF No. 23; ECF No. 23-1.) On “initial review of the notice of appeal, ” the appellate court found that the document “was filed within the time for filing a Federal Rule of Appellate Procedure 4(a)(5) motion for an extension of time.” Id. The court therefore remanded the case to this Court “for the limited purpose of determining whether the notice of appeal should be treated as a Rule 4(a)(5) motion for an extension of time and, if appropriate, for a ruling on the motion.” Id.

         On remand, this Court determined that “[e]ven if [Small's] 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.” (ECF No. 26 at 2.) In particular, “[a]lthough Petitioner state[d] that the ‘prison keeps going on lockdown due to inmate violence, ' . . . he [did] not describe how the lockdown impacted his failure to file a timely notice of appeal” and did not “present any allegations that he was denied access to legal material or that he lacked the ability to prepare his own notice of appeal.” (Id.) In addition, the Court found that there was “no indication” in the motion that he “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.” (Id.) The Court therefore “grant[ed] Petitioner thirty (30) days . . . 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.” (Id. at 3.)

         Petitioner thereafter timely filed his “Response to Court's ‘Order Requiring Additional Information'” (“Supplemental Statement”). (ECF No. 29.) In his Supplemental Statement, Petitioner alleges that a series of events, including but not limited to a prison lockdown, prevented him from timely filing the notice of appeal. (Id. at 1-2.) He states that the lockdown lasted until several days after the judgment was entered, during which he had no access to the prison library or a legal aide. He was then taken to the Shelby County jail in anticipation of his appearance at a state post-conviction proceeding, where he remained for two weeks without access to a library or a legal aide. He was transported back to the state prison the first week of August, where he was kept in the “Orientation Unit” for “several days” without access to a law library or legal aide. (Id. at 2.) Upon transfer to the “IB Pod, ” he “had to wait” a few days to sign up for access to the library. (Id.) It then took him three visits to the library to prepare his notice of appeal because “the library only allows inmates 15 minutes with the law library aides per session.” (Id.)

         In an order dated January 5, 2018, the Court noted that most of the allegations contained in the Supplemental Statement “relate to the location of Petitioner's custody at given points in time and the prison rules regarding inmate access to the law library or library aide.” (ECF No. 30 at 4.) As these “facts are . . . likely documented or relatively easily verified by the State, ” the Court ordered Respondent to respond to Petitioner's motion. (Id.)

         On February 1, 2018, Respondent filed its response opposing the motion. (ECF No. 31.) Attached to the response is the affidavit of Cynthia D. Casagrande, the “contract monitor for operations” at the prison in which Petitioner is incarcerated (ECF No. 31-1), as well as a copy of the prison form titled “Segregation Request for Legal/Religious Publications” (ECF No. 31-2). Petitioner filed a reply in further support of his motion. (ECF No. 32.)

         DISCUSSION

         In most circumstances, a notice of appeal must be filed “within 30 days after entry of the judgment or order appealed from.” Fed. R. App. P. (4)(a)(1)(A). The district court may grant an extension of 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.

Fed. R. App. P. (4)(a)(5)(A)(i)-(ii).[1]

         “Good cause will be found where forces beyond the control of the appellant prevented her from filing a timely notice of appeal.” Nicholson v. City of Warren, 467 F.3d 525, 526 (6th Cir. 2006) (citation omitted). “‘The excusable neglect standard applies in situations in which there is fault; in such situations, the need for an extension is usually occasioned by something within the control of the movant.'” JBlanco Enterprises v. Soprema Roofing and Waterproofing, Inc., 2017 WL 1838700, at *1 ...


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