UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Ervin Brown, 

Petitioner, 

v. 

Steven Rivard, 

Respondent. 

________________________________/

Case No. 14-cv-14771 

Judith E. Levy 

United States District Judge 

Mag. Judge Elizabeth A. Stafford 

OPINION AND ORDER CONSTRUING PETITIONER’S 

“(INSTANTER) PETITION FOR PERMISSION, OR LEAVE TO 

APPEAL” AS A FEDERAL RULES OF APPELLATE 

PROCEDURE RULE 4(a)(5) MOTION FOR EXTENSION OF 

TIME AND GRANTING THE MOTION [13] 

 On January 29, 2016, this Court entered an opinion and order 

denying the petition for writ of habeas corpus and separately entered 

judgment. (Dkt. 11; Dkt. 12.) On March 30, 2016, Petitioner’s 

“(Instanter) Petition for Permission, or Leave to Appeal,” Notice of 

Appeal, and Application to Proceed In Forma Pauperis, all dated March 

24, 2016, were entered on the Docket. (Dkt. 13; Dkt. 14; Dkt. 15.) 

Petitioner’s Application to Proceed In Forma Pauperis was denied on 

April 6, 2016. (Dkt. 17.) 

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On June 29, 2016, the Court of Appeals remanded the case for 

consideration of the “(Instanter) Petition for Permission, or Leave to 

Appeal.” (Dkt. 18.) As noted by the court, Petitioner “appears to offer 

an excuse as to why his notice of appeal was filed late,” and because 

that “document was filed within the time for filing a Federal Rule of 

Appellate Procedure 4(a)(5) motion for an extension of time,” this Court 

must determine whether it “should be treated as a Rule 4(a)(5) motion 

for an extension of time and, if appropriate, [rule] on the motion.” (Id.) 

The “(Instanter) Petition for Permission, or Leave to Appeal” 

should be treated as a Rule 4(a)(5) motion for an extension of time. 

Petitioner is pro se, and although he styles the motion as a “petition” 

under Rule 4(b), he “alleges a timeline that might satisfy the conditions 

of Rule 4(a)[(5)].” See Bassir v. United States, No. 14-2583, 2015 U.S. 

App. LEXIS 2550, at *2 (6th Cir. Feb. 10, 2015) (construing a late notice 

of appeal as a Rule 4(a)(6) motion to reopen the appeal period) (citing 

Sanders v. United States, 113 F.3d 184, 187 n.5 (11th Cir. 1997) 

(“Construing a pro se litigant’s late notice of appeal as a Rule 4(a)(6) 

motion satisfies that Rule’s requirement for a motion.”)). The Sixth 

Circuit construes a late pro se notice of appeal itself as a Rule 4(a) 

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motion in some circumstances. See id. Petitioner’s separately filed 

“(Instanter) Petition for Permission, or Leave to Appeal” should also be 

construed as such. 

Under Rule 4(a)(5), this Court’s authority to reopen and extend 

the time for filing a notice of appeal after the lapse of the usual thirty 

days is set forth as follows: 

(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. . . . 

Fed. R. App. P. 4(a)(5). 

The motion was timely filed in accordance with Rule 4(a)(5)(A)(i). 

The judgement was entered on January 29, 2016. The notice of appeal 

was therefore due on or before February 29, 2016. Even though the 

Rule 4(a)(5) motion was entered on March 30, 2016, thirty-one days 

after the time prescribed by Rule 4(a)(1), Petitioner is not an e-filer and 

had signed the motion on March 24, 2016. On balance, the Court finds 

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that Petitioner “move[d] no later than 30 days after” the time to appeal 

expired on February 29, 2016. 

And Petitioner has shown “good cause.” To determine whether 

the failure to file a timely notice of appeal is excusable the Court must 

consider four factors: (1) the risk of prejudice to the nonmoving party; 

(2) the length of delay and its potential prejudice upon the judicial 

proceeding; (3) the reason for the delay; and (4) whether the movant 

acted in good faith. See Pioneer Inv. Servs. Co., v. Brunswick Assocs. 

Ltd. P’ship, 507 U.S. 380, 388 (1993). Good cause should be found when 

forces beyond the control of the petitioner prevented him from filing a 

timely notice of appeal. See, e.g., Mirpuri v. ACT Mfg., Inc., 212 F.3d 

624, 630 (1st Cir. 2000). 

Petitioner did not receive the opinion and order or judgment until 

February 25, 2016 (see Dkt. 13 at 2) because the documents were 

mistakenly mailed to the wrong address and were otherwise delayed in 

reaching Petitioner, which was not in his control. (See also Dkt. text 

entries dated January 29, 2016, and February 10, 2016.) And 

Petitioner notes that because he is pro se and it took him additional 

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time to correspond with others in preparing his appellate materials, he 

could not meet the deadline. 

The risk of prejudice to the nonmoving party is low, especially 

given the nature of the appeal in this case. And given the strictures of 

the rule, the length of the delay is necessarily short; here, only thirty 

days. Because Petitioner has shown good cause for why he was unable 

to file his notice of appeal within the original deadline and then timely 

moved for an extension of time under Rule 4(a)(5), his motion (Dkt. 13) 

is GRANTED. 

Petitioner filed his notice of appeal at the time he filed the Rule 

4(a)(5) motion. (Dkt. 14.) Pursuant to this order, the notice of appeal 

was timely filed. See, e.g., Salaam v. Adams, No. 9:03-CV-517 

(LEK/GHL), 2007 U.S. Dist. LEXIS 4736, at *3 (N.D.N.Y. Jan. 23, 2007) 

(“[Plaintiff]’s Motion for an extension of time within which to file a 

notice of appeal is hereby granted. Accordingly, Plaintiff’s notice of 

appeal, already filed with this Court . . . , shall be accepted and 

forwarded to the United States Court of Appeals . . . .”) 

IT IS SO ORDERED. 

Dated: July 1, 2016 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

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United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on July 1, 2016. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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