IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JASON DEWORD DADE, 1115939, )

Petitioner, )

)

v. ) USDC 3:04-CV-0989-R

) USCA 06-10922

DOUGLAS DRETKE, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court filed

on February 6, 2007, this cause has been referred to the United States Magistrate Judge. The

findings, conclusions and recommendation of the Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS:

On October 19, 2006, the Fifth Circuit Court of Appeals remanded this case to determine

whether Petitioner delivered his notice of appeal to prison officials for mailing on or before July

31, 2006. However, no mail log entries were found for Petitioner at the Telford Unit. (See

Respondent’s advisory to the Court filed on March 20, 2007). 

On June 30, 2006, the Court dismissed this habeas corpus petition with prejudice. On

July 5, 2006, the Court received a letter from Petitioner, advising that he would leave the Telford

Unit temporarily for medical reasons. (Docket # 21). On August 7, 2006, the Court received

Petitioner’s request for a certificate of appealability (COA), which stated that today is July 30,

2006, that Petitioner wished to “object” to the dismissal of his habeas petition if given enough

time, and that he would be leaving the Telford Unit once again for an early August 2006 medical

appointment. (Docket #22). The Clerk docketed the pleading as a notice of appeal and a COA

 

 Case 3:04-cv-00989-R Document 32 Filed 03/22/07 Page 1 of 3 PageID 130
1 Petitioner’s August 7, 2006 pleading was post-marked on August 1, 2006.

2 Federal Rule of Appellate procedure 4(a)(5) reads as follows: 

(5) Motion for Extension of Time.

(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.

(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3)

may be ex parte unless the court requires otherwise. If the motion is filed after the

expiration of the prescribed time, notice must be given to the other parties in

2

request. On August 16, 2006, the Court denied the COA request. (Docket #23).1

Thereafter on August 22, 2006, Petitioner filed a pleading requesting “an extension of

time to properly file a COA in this Court.” (Docket #24). He stated that he had received the

judgment on July 29, 2006, that he left the Telford Unit on July 30, 2006, for a doctor

appointment, and that he returned to his Unit on August 9, 2006. (Id.) He asked that the Court

grant him an extension until August 30, 2006 to file a COA request, and that his pleading be

accepted as “my notice of appeal.” (Id.). 

Liberally construed, Petitioner’s August 22, 2006 pleading sought an extension of time to

file a notice of appeal within the requisite period. See Fed. R. App. P. 4(a)(5)(A)(i) (motion for

extension of time must be filed within thirty days following the thirty-day period for filing a

timely appeal). The Court notes that Petitioner has made a conscientious effort to keep the Court

appraised of his temporary absences from the Telford Unit because of medical reasons, and to

seek an extension of time to file a notice of appeal despite his absences. Because Petitioner has

made a sufficient showing of excusable neglect, see Fed. R. App. P. 4(a)(5)(A)(ii), his motion for

an extension of time should be granted.2

 

 Case 3:04-cv-00989-R Document 32 Filed 03/22/07 Page 2 of 3 PageID 131
accordance with local rules.

(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed

time or 10 days after the date when the order granting the motion is entered,

whichever is later.

3

RECOMMENDATION: 

For the foregoing reasons it is recommended that Petitioner should be GRANTED an

extension until August 7, 2006 to file a notice of appeal, and that the case be RETURNED to the

Fifth Circuit Court of Appeals. 

A copy of this recommendation will be mailed to Petitioner and counsel for Respondent.

Signed this 22nd day of March, 2007.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

 Case 3:04-cv-00989-R Document 32 Filed 03/22/07 Page 3 of 3 PageID 132