2019 | Cited 0 times | D. New Jersey | March 4, 2019


DISTRICT OF NEW JERSEY _________________________________________ LUIS GONZALEZ, : : Petitioner, : Civ. No. 15-7564 (RBK) : v. : : STEVEN JOHNSON, et al., : OPINION : Respondents. : _________________________________________ : ROBERT B. KUGLER, U.S.D.J.

This matter has been opened to the Court by Petitione a Motion to Move, Answer, or Otherwise Reply. (See ECF No. 15.) filing as a Motion for Extension of Time to File a Notice of Appeal pursuant to Federal Rule of Appellate Procedure 4(a)(5). (See ECF No. 14-2 at 1.) For the reasons explained below, the Court will grant the motion.

The Court recounts only the facts necessary to resolve the instant motion. On December 12, 2018, this Court issued an opinion and separate order denying habeas corpus pursuant to 28 U.S.C. § 2254. (See ECF Nos. 12, 13.) On January 31, 2019, Petitioner placed his Notice of Appeal and Motion for Extension of Time to File a Notice of Appeal in the prison mail to be sent to the United States Court of Appeals for the Third Circuit. 1

(See ECF No. 15 at 3; see also ECF No. 14- received by the Third Circuit on February 7, 2019. (See ECF Nos. 14, 14-1, 14-2.) However, Petitioner and motion were improperly filed, and should have been addressed to the District Court. Fed. R.

1 A system. See Houston v. Lack, 487 U.S. 266, 270 71 (1988).

App. P. 3(a)(1). Third Court submissions to this Court for disposition on February 13, 2019. (See ECF No. 14-2.) This Court

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 (30) days after entry of the judgment or order appealed from. See Fed. R. App. P. 4(a)(1). See Bowles v. Russell, 551 U.S. 205, 213 (2007). without jurisdiction to Id.

In the instant case, this Court issued an habeas action on December 12, 2018. (See ECF Nos. 12, 13). Petitioner stated that he received the opinion and order on or about that same day. (See Notice of Appeal would have been timely filed if it had been mailed within thirty (30) days of the

order January 11, 2019. As Petitione filed until January 31, 2019,

A petitioner may, however, request to extend the time to file a notice of appeal pursuant to Fed. R. App. P. 4(a)(5). 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 ex Allen v. Vaughn 130, 133 (3d Cir. 2008) (citing Fed. R. App. P. 4(a)(5)(A)). 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 lat 4(a)(5)(C).

Here, Notice of Appeal and motion were submitted to the Third Circuit on January 31, 2019, within the thirty (30) day time period prescribed by Fed. R. App. P. 4(a)(5) to file for an extension. (See ECF No. 14-2 at 1.) From Petitio certification, it appears that once he received the opinion and order from this Court on December 12, 2018, he made diligent efforts to visit the law library and to meet with the paralegal who was assisting him with his case. (See ECF No. 15 at 2.) (Id.) Petitioner further added that he was unaware of the filing deadlines for a Notice of Appeal and by the time that he was finally able to (See id.) Upon meeting with the paralegal, the paralegal allegedly indicated that he would file the Notice of (See id.) Ultimately, however, the paralegal was not able to file the Notice of Appeal, which Petitioner alleges resulted in his notice being untimely. (See id. at 2.) Thus, the primary issue before this late submission constitutes excusable neglect. 2

To qualify for an extension of time under the excusable neglect component of Fed. R. App. P. 4(a)(5)(ii), a litigant must assert facts meeting the considerations stated in Ragguette. See Ragguette, 691 F.3d at 324 26 (applying Pioneer Investment Serv. Co. v. Brunswick Assoc. Limited Partnership, 507 U.S. 380 (1993), and Consol. Freightways Corp. of Del. v. Larson, 827

2 See Ragguette v. Premier Wines & Spirits, 691 F.3d 315, 323 n.2 (3d Cir. 2012)

F.2d 916 (3d Cir. 1987)). In Ragguette, the United States Court of Appeals for the Third Circuit listed the following factors to be considered by the Court in analyzing excusable neglect:

(1) whether the inadvertence reflects professional incompetence such as ignorance of the rules of procedure, Campbell v. Bowlin, 724 F.2d 484 (5th Cir. 1984) (failure to read rules of procedure not excusable); (2) whether the asserted inadvertence reflects an easily manufactured excuse incapable of verification by the court, Airline Pilots v. Executive Airlines, Inc., 569 F.2d 1174 (1st Cir. 1978) (mistake in diarying counsel's calendar not excusable); (3) whether the s failure to provide for a readily foreseeable consequence, United States v. Commonwealth of Virginia, 508 F. Supp. 187 (E.D. Va. 1981) (failure to arrange coverage during attorney's vacation which encompassed end of appeal period not excusable); (4) whether the inadvertence reflects a complete lack of diligence, Reinsurance Co. of America, Inc. v. Administratia, 808 F.2d 1249 (7th Cir. 1987); or (5) whether the court is satisfied that the inadvertence resulted despite counsel's substantial good faith efforts toward compliance. Id. at 325 26 (citing Larson, 827 F.2d at 919).

In Pioneer, the Supreme Court held that the analysis should be an equitable one and -movant], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reas 507 U.S. at 395.

Here, the Court finds that the Ragguette and Pioneer factors weigh in favor of granting motion for an extension of time. Petitioner is proceeding pro se without the assistance of an attorney; as such, his lack of awareness of the time limit to file a Notice of Appeal and his inability to access the law library in a timely manner 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 would be subject to a time deadline to file his appeal and he requested to visit the law library numerous times until he was successful. Moreover,

visit the library and meet with the paralegal demonstrate his reasonable diligence in attempting to timely file his appeal.

The Court also finds that the twenty (20) day delay in filing the notice of appeal is unlikely to prejudice Respondent. The length of the delay is de minimis, and it appears that Petitioner acted in good faith. Motion for Extension of Time to File a Notice of Appeal. An appropriate Order follows.

DATED: March 1, 2019__ s/Robert B. Kugler

ROBERT B. KUGLER United States District Judge

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