United States District Court, W.D. Tennessee, Eastern Division
ORDER GRANTING MOTION FOR EXTENSION OF TIME TO FILE
NOTICE OF APPEAL AND DIRECTING CLERK TO FORWARD NOTICE OF
APPEAL TO COURT OF APPEALS
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE
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.
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.”
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.)
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.)
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.
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.)
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
Fed. R. App. P. (4)(a)(5)(A)(i)-(ii).
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
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