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Tiggs v. Johnson

United States District Court, D. New Jersey

June 25, 2019

ARTHUR L. TIGGS, Petitioner,
v.
STEVEN JOHNSON, et al., Respondents.

          OPINION & ORDER

          Kevin McNulty, U.S.D.J.

         On or about December 10, 2015, pro se Petitioner Arthur L. Tiggs initiated this habeas action in which he sought relief pursuant to 28 U.S.C. § 2254. (DE 1.) On March 8, 2019, 1 denied Tiggs's habeas petition and denied him a certificate of appealability. (DEs 23 and 24.) Approximately 91 days later, on June 7, 2019, [1] Tiggs filed a notice of appeal challenging my March 8th decision. (DE 27.) Tiggs concurrently filed two motions related to that appeal, both of which are now pending before me: (1) a motion to file his appeal out of time (at DE 25); and (2) his motion to proceed in forma pauperis ("IFP") on appeal[2] (at DE 26). For the reasons detailed herein, I will deny both motions.

         1. Motion to file appeal out of time

         Tiggs seeks authorization to file his otherwise untimely appeal. (DE 25.) This motion is governed by Rule 4 of the Federal Rules of Appellate Procedure (the "Appellate Rules"). Under Appellate Rule 4(a)(1)(A), a "notice of appeal... must be filed with the district clerk within 30 days after entry of the judgment or order appealed from." See Fed. R. App. P. 4(a)(1)(A). Here, my final order denying Tiggs's habeas petition was filed on March 8, 2019. Pursuant to Rule 4(a)(1)(A), Tiggs had until April 8, 2019[3] to file his notice of appeal. Id. His notice of appeal, filed on June 7, 2019, is therefore facially untimely.

         I am, in limited circumstances, authorized to extend the 30-day filing deadline of Rule 4(a)(1)(A). Appellate Rule 4(a)(5) provides, in pertinent part, that:

(A) The 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.
(C) No. extension under this 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.

Id.

         Tiggs's motion to extend his deadline to file his appeal, filed on June 7, 2019, is untimely under Appellate Rule 4(a)(5)(A)0), because that motion was not filed within thirty days after the deadline to appeal (i.e., on or before May 8, 2019). For that reason alone, I am compelled to deny the motion for an extension. See Hatch v. New Jersey Superior Court, No. 15-2514, 2017 WL 1591845, at *2 (D.N.J. May 1, 2017) (applying substantially the same analysis in denying petitioner's motion to extend his appeal deadline, and further noting that "Congress specifically limited district courts' ability to reopen the time for appeal") (citing 28 U.S.C. § 2107(c)).

         Tiggs's June 7, 2019 motion was not filed within the applicable deadline under Fed. R. App. P. 4(a)(5)(A)(i). Accordingly, the motion for extension of the time to appeal is denied.[4]

         2. Tiggs's motion to proceed in forma ...


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