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Alvarado v. D'Ilio

United States District Court, D. New Jersey, Newark Vicinage

July 19, 2017

JORGE ALVARADO, Petitioner,
v.
STEPHEN D'ILIO, et al., Respondents.

          MEMORANDUM

          Stanley R. Chester United States District Court Judge

         This Matter has been opened to the Court by Petitioner's filing of motion appeal out of time pursuant to Federal Rule of Appellate Procedure 4(a)(5). (ECF No. 40.) For the reasons explained below, the Court will grant the motion.

         The Court recounts only the facts necessary to resolve the instant motion. On August 23, 2016, following an evidentiary hearing, this Court issued an Opinion and separate Order dismissing Petitioner's petition for writ of habeas corpus as barred by the one-year statute of limitations in 28 U.S.C. § 2244(d). (ECF Nos. 30, 31.) On October 3, 2010, Petitioner's Notice of Appeal was docketed. (ECF No. 32.) The Notice of Appeal includes a certification pursuant to 28 U.S.C. § 1746 that Petitioner handed his Notice of Appeal and in forma pauperis application to prison officials for filing on September 23, 2016.[1] (ECF No. 32-2.)

         On October 6, 2016, the Clerk of the Third Circuit Court of Appeals advised Petitioner that his appeal would be submitted to a panel of the Court for possible dismissal due to jurisdictional defect. (See ECF No. 40-1.) The Clerk further advised Petitioner that his appeal was not filed within the time prescribed by the Federal Rules of Appellate Procedure and explained, in relevant part, that the District Court has discretion to permit an extension of time where (1) a motion requesting such relief is filed not later than 30 days after the normal period and where (2) good cause or excusable neglect is shown. (ECF No. 40-1, at 1-2 (citing Fed. R. App. P. 4(a)(1) and 4(a)(5).)

         Petitioner submitted a response to the Third Circuit, which is dated October 13, 2016 and was received by the Third Circuit on October 19, 2016. (See ECF No. 40-1.) In his response, Petitioner asserts, in relevant part, as follows:

The order denying Petitioner's petition for habeas corpus was entered on August 23, 2016, Petitioner received said order on September 7, 2016. (Attached hereto as Pal) However, with the limited resources available to Petitioner, on September 23, 2016, Petitioner hand[ed] his notice of appeal to prison officials here at New Jersey State Prison for forwarding to the clerk of the District Court. [F]or reason(s) unknown to the Petitioner, the mailroom did not process Petitioner's outgoing legal mail until September 29, 2016 (Attached hereto as Pa 2 and 3), thus, Petitioner appeal was timely filed pursuant to Houston v. Lack, 487 U.S. 266 (1988).

(ECF No. 40-1, Petitioner's Response at 1.) The attachments to Petitioner's response include a postage remit showing the date of September 23, 2016. (ECF No. 40-1, at 4.)

         Upon review of Petitioner's response, Third Circuit Judge Kent A. Jordan issued an Order on February 22, 2017, explaining that even if Petitioner handed his notice of appeal to prison officials for filing on September 23, 2017, the appeal was filed one day late. (See ECF No. 40.) Nevertheless Judge Jordan determined that "Appellant's response in support of jurisdiction contains language that arguably invokes excusable neglect or good cause as set out in Rule 4(a)(5)" and directed the Clerk to "forward the jurisdictional response, filed on October 19, 2016, to the District Court, which should consider it as Rule 4(a)(5) motion." The Third Circuit's Order was docketed in this matter, but it was not docketed as a motion. (See ECF No. 40.)

         Requests to extend the time to appeal are governed by Fed. R. App. P. 4. "[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement." See Bowles v. Russell, 551 U.S. 205, 213 (2007). "[W]hen an appeal is taken beyond the time set out in the Rule, an appellate court is without jurisdiction to entertain and decide it." Id. In a civil case, with certain exceptions not applicable here, the notice of appeal required by Fed. R. App. P. 3 must be filed with the district clerk within thirty days after entry of the judgment or order appealed from. See Fed. R. App. P. 4(a)(1).

         "Rule 4(a)(5)(A) states, '[t]he 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) 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.'" Allen v. Vaughn, 298 F.App'x 130, 133 (3d Cir. 2008) (citing Fed. R. App. P. 4(a)(5)(A)). "No extension under... Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later." Fed. R. App. P. 4(a)(5)(C); see also Wade v. Warden FCI Fairton, No. CV 15-8925 (RMB), 2017 WL 160827, at *1 (D.N.J. Jan. 13, 2017) (explaining same).

         Petitioner's response to the Third Circuit was received on October 19, 2016, within the 60 day period proscribed by Fed. R. App. P. 4(a)(5), and the Circuit Court has instructed this Court to consider his response as a motion to appeal out of time.

         From his response, it appears that Petitioner mistakenly believed, and, indeed, still believes, that his appeal would be timely if he handed it to prison officials for filing on September 23, 2016. To be timely under the prisoner mailbox rule, however, his appeal needed to be handed to prison officials for filing one day earlier, i.e., on September 22, 2016, which is 30 days after the entry of judgment. See Fed. R. App. P. 4(a)(1). Petitioner's response also references "the limited resources available to Petitioner" at New Jersey State Prison. Although he does not provide any facts from which the Court could find that these limited resources prevented him from handing his notice of appeal to prison officials on September 22, 2016, the limited resources may explain why Petitioner waited until what he believed to be the end of the 30-day period to submit his notice of appeal.[2]

         Thus, the primary issue before the Court is whether Petitioner's miscalculation of the 30-day period by a single day constitutes excusable neglect.[3] To qualify for an extension of time under the excusable neglect component of Fed. R. App. P. 4(a)(5)(h), a litigant must assert facts meeting the considerations stated in Ragguette v. Premier Wines & Spirits, 691 F.3d 315, 324-26 (3d Cir. 2012) (applying Pioneer Investment Serv. Co. v. Brunswick Assoc. Limited Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), and Consol. Freightways Corp. of Del. v. Larson, 827 F.2d 916 (3d Cir.1987)).[4]

         Here, the Court finds that the Pioneer and Larson factors weigh in favor of granting Petitioner's motion to extend the time to file a notice of appeal. Here, Petitioner is proceeding pro se without the assistance of an attorney; as such, his miscalculation of the 30-day period does not reflect professional incompetence. Nor does his late filing suggest that Petitioner was completely ignorant of the rules of procedure, as Petitioner knew that he had 30 days to file his appeal but miscalculated the 30-day period. To a certain extent, the tardiness of his appeal could have been avoided had Petitioner not waited until the very last day of the filing period to submit his appeal to prison officials. His inadvertence does not reflect a complete lack of diligence, as he submitted his notice of appeal on what he believed was the last day of the 30-day period and has cited to a lack of resources at the prison to explain why he did not submit his notice of appeal earlier. The Court also finds that a one-day delay in filing the notice of appeal is unlikely to prejudice ...


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