United States District Court, E.D. Michigan, Southern Division
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 ...