Harris v. Chapman

         OPINION AND ORDER GRANTING PETITIONER AN EXTENSION OF TIME TO FILE HIS NOTICE OF APPEAL, DIRECTING THE CLERK OF THE COURT TO TRANSFER THE APPLICATION FOR CERTIFICATE OF APPEALABILITY (Dkt. # 13) TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT, AND DENYING AS MOOT THE APPLICATION TO PROCEED WITHOUT PREPAYING FEES AND COSTS ON APPEAL (Dkt. # 15).

          HONORABLE DENISE PAGE HOOD CHIEF NITED STATES DISTRICT JUDGE

         On March 28, 2019, this Court issued an opinion and order denying petitioner's application for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. This Court also denied petitioner a certificate of appealability, but granted petitioner leave to appeal in forma pauperis.

         On June 4, 2019, petitioner filed a Notice of Appeal (Dkt. # 12), which is construed as a motion for an extension of time to file a Notice of Appeal. Petitioner subsequently filed an application for a certificate of appealability and an application to proceed without prepaying fees and costs on appeal.

         For the reasons that follow, the motion for an extension of time to file a Notice of Appeal is GRANTED. The Clerk of the Court is ORDERED to transfer the application for a certificate of appealability to the United States Court of Appeals for the Sixth Circuit. The motion to proceed without prepaying fees and costs on appeal is DENIED as moot.

         Fed. R. App. P. 4 (a)(1) states that a notice of appeal must be filed within thirty days of the entry of the judgment or order from which the appeal is taken. This time limit is mandatory and jurisdictional. Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264 (1978). The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Rhoden v. Campbell, 153 F.3d 773, 774 (6th Cir. 1998).

         Fed.R.App.P. 4 (a)(5)(A) indicates that a district court may extend the 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) that party shows excusable neglect or good cause.

         Petitioner is obviously not entitled to an extension of time to file an appeal based upon Fed.R.App.P. 4 (a)(5)(A), because he moved for an extension of time to file an appeal more than thirty days after the original period to file a notice of appeal had expired.

         Fed. R. App. P. 4(a)(6) indicates that a district court may reopen the time to file an appeal for a period of fourteen days after the date when its order to reopen is entered, so long as the following conditions are satisfied:

(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;

(B) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice under Federal Rule of Civil Procedure ...