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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EUGENE CARTER 143752, 

Petitioner,

 CASE NO. 2:08-CV-14228

v. HONORABLE VICTORIA A. ROBERTS 

 UNITED STATES DISTRICT JUDGE

CAROL R. HOWES,

Respondent.

_______________________________/

OPINION AND ORDER EXTENDING TIME TO FILE THE APPEAL PURSUANT TO

FEDERAL RULES OF APPELLATE PROCEDURE(4)(a)(5)

On December 1, 2011, this Court dismissed Petitioner's habeas application brought

pursuant to 28 U.S.C. § 2254. The Court also denied Petitioner a certificate of appealability,

but granted him leave to appeal in forma pauperis. (Dkts. 14 and 15). Petitioner has now

filed a motion with this Court, asking that the time for him to file a notice of appeal be

extended. For the reasons stated below, the motion is GRANTED.

Petitioner requests that this Court issue an order that would permit him to file his

notice of appeal. As the basis for this claim, Petitioner alleges that although he received

a copy of the Court's opinion and order denying the petition for writ of habeas, a fellow

prisoner assisting him filed his notice of appeal directly in the Sixth Circuit instead of with

this Court. By the time Petitioner discovered the error, he alleges, the time for filing a

notice of appeal had expired.

Fed. R. App. P. 4 (a)(1) states that a notice of appeal must be filed within thirty days

of the entry of the judgment or order from which the appeal is taken. This time limit is

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mandatory and jurisdictional. Browder v. Director, Department of Corrections of Illinois, 434

U.S. 257, 264 (1978). The failure of an appellant to timely file a notice of appeal deprives

an appellate court of jurisdiction. Rhoden v. Campbell, 153 F. 3d 773, 774 (6th Cir. 1998).

However, a party asserting good cause may seek relief within 30 days of the time for filing

a notice of appeal under Federal Rule of Appellate Procedure 4(a)(5). Zack v. United

States, 133 F.3d 451, 453 (6th Cir. 1998).

Fed.R.App.P. 4 (a)(5)(A) indicates that a 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) that party shows excusable neglect or good cause.

Petitioner filed the instant motion on January 12, 2012, within 30 days of the

expiration of time to file his notice of appeal. The Court accepts his claim that he failed to

timely file a notice of appeal because a prisoner assisting him with his appeal filed the

notice in the wrong court. The Court will therefore grant the motion. In accordance with

Fed. R. App. P. 4(a)(5)(C), the time for filing a notice of appeal is enlarged to fourteen days

from the date of this order.

Accordingly, IT IS ORDERED that the motion to reopen time to file appeal (Dkt. 16)

is GRANTED. Petitioner shall have fourteen (14) days from the date of this order to file a

notice of appeal. 

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: January 26, 2012

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The undersigned certifies that a copy of this

document was served on the attorneys of

record and Eugene Carter by electronic

means or U.S. Mail on January 26, 2012.

s/Carol A. Pinegar 

Deputy Clerk

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