The opinion of the court was delivered by: Simandle, District Judge
HONORABLE JEROME B. SIMANDLE
Petitioner brings this motion for an extension of time to file a notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A). Respondents oppose this motion, arguing that Petitioner has failed to demonstrate excusable neglect or good cause. For the following reasons, this Court holds that Petitioner's motion to extend was timely, and Petitioner's delay in filing his notice of appeal was due to excusable neglect. Accordingly, Petitioner's motion is granted and his time to file notice of appeal will be extended to ten days from the date of the entry of the accompanying order.
On March 22, 2004, while imprisoned at the Adult Diagnostic and Treatment Center, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Petition was considered by this Court, and denied by an Opinion and Order entered on December 22, 2005. On that date, a copy of the same was mailed to Petitioner at the Adult Diagnostic and Treatment Center. That mailing was not returned to this Court.
Meanwhile, however, unbeknownst to the Court, Petitioner was transferred to Northern State Prison, on September 30, 2005. This Court received notice of Petitioner's address change on February 2, 2006, four months after the Petitioner was transferred.
Petitioner acknowledges that he was aware of this Court's Opinion denying his Petition on January 19, 2006, 28 days after the entry of judgment. (Resp. Ex. D.) In January, 2006, this Court received letters from Petitioner expressing frustration over his perceived inability to appeal. By letter to Petitioner dated February 7, 2006, this Court informed Petitioner that he could request certification from the Court of Appeals despite this Court's order declining to issue a certificate of appealability. The letter also briefly outlined the procedural rules governing appeal and informed Petitioner that the Court would consider a motion to extend the time to file an appeal if filed no later than February 22, 2006.
On February 16, 2006, Petitioner filed the present motion for extension of time due to "Excusable Neglect or Good Cause."
The issue before this Court is whether Petitioner's delay in filing his notice of appeal was due to excusable neglect or good cause. If so, this Court may extend the time for Petitioner to file notice of appeal.
Rule 4 requires this Court to conduct a two part analysis to determine 1) if the motion to extend was timely, and 2) whether the moving party has demonstrated excusable neglect or good cause. See Fed. R. App. P. 4(a)(1)(A)(i)-(ii).
A. Petitioner's Motion to Extend was Timely
First, this Court must determine if the Petitioner's motion to ...