NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

JAMIYL DOCK, : 

 : 

 Petitioner, : Civil No. 11-3208 (ES) 

 : 

 v. : OPINION 

 : 

GREG BARTKOWSKI, et al., : 

 : 

 Respondents. : 

SALAS, DISTRICT JUDGE

Jamiyl Dock (“Petitioner”) filed a Petition for a Writ of Habeas Corpus (the “Petition”) 

pursuant to 28 U.S.C. § 2254(a) challenging a state court conviction. (D.E. No. 1). By Order 

and accompanying Opinion entered December 7, 2012, this Court dismissed the Petition without 

prejudice as untimely and denied a certificate of appealability. (D.E. Nos. 22 & 23). Presently 

before this Court is Petitioner’s motion for leave to appeal as within time. (D.E. No. 29, 

(“Petitioner’s Motion”)). For the reasons expressed below, this Court will deny the motion.1

 

I. BACKGROUND 

On December 7, 2012, this Court dismissed the Petition without prejudice as untimely and 

denied a certificate of appealability. (D.E. Nos. 22 & 23). On April 29, 2013, the Clerk of Court 

received from Petitioner a notice of appeal and a motion for leave to file an appeal as within time. 

(D.E. Nos. 28 & 29). The accompanying certificate of service states that Petitioner placed the 

notice of appeal and motion in the mail on April 24, 2013. (D.E. No. 29-3). 

 

1

 Pursuant to Rule 78 of the Federal Rules of Civil Procedure, the Court resolves Petitioner’s motion without oral 

argument. 
2

In Petitioner’s certification in support of his motion for leave to appeal as within time, 

Petitioner states that he received the Court’s December 7, 2012 Opinion and Order on December 

12, 2012, but that he was unable to respond because he was being held in administrative 

segregation and did not have access to the legal documents that he needed. (D.E. No. 29-1 

(“Pet.’s Cert.”) ¶¶ 1-3; see also D.E. No. 27 (Petitioner’s December 20th Letter to Clerk of Court 

indicating the same)). On April 16, 2013, Petitioner “received his personal property” and upon 

the advice of an inmate paralegal, he filed the instant motion for leave to appeal as within time. 

(Pet.’s Cert. ¶¶ 4-5). 

II. DISCUSSION 

“Except as otherwise provided in this section, no appeal shall bring any judgment, order or 

decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless 

notice of appeal is filed, within thirty days after the entry of such judgment, order or decree.” 28 

U.S.C. § 2107(a); see also Fed. R. App. P. 4(a)(l) (“[T]he notice of appeal . . . must be filed with 

the district clerk within 30 days after entry of the judgment or order appealed from.”). Where a 

pro se prisoner files the notice of appeal, “the notice is timely if it is deposited in the institution’s 

internal mail system on or before the last day for filing.” Fed .R. Civ. P. 4(c); Houston v. Lack, 

487 U.S. 266, 276 (1988) (pro se prisoner’s notice of appeal is “filed at the moment of delivery” to 

prison officials for mailing to the court).

But Section 2107(c) permits the district court to extend the time for appeal. This Section 

provides: 

The district court may, upon motion filed not later than 30 days after 

the expiration of the time otherwise set for bringing appeal, extend 

the time for appeal upon a showing of excusable neglect or good 

cause. In addition, if the district court finds-- 
3

(1) that a party entitled to notice of the entry of a judgment or 

order did not receive such notice from the clerk or any party 

within 21 days of its entry, and 

(2) that no party would be prejudiced, 

the district court may, upon motion filed within 180 days after entry 

of the judgment or order or within 14 days after receipt of such 

notice, whichever is earlier, reopen the time for appeal for a period 

of 14 days from the date of entry of the order reopening the time for 

appeal. 

28 U.S.C. § 2107(c). 

Accordingly, Rule 4(a)(5) permits the district court to extend the time to file a notice of 

appeal if the following two conditions are met: 

(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 4(a) expires, that party shows 

excusable neglect or good cause. 

Fed. R. App. P. 4(a)(5)(A). Furthermore, “[n]o 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.” Fed. R. App. P. 4(a)(5)(C). 

Since Petitioner does not assert that he failed to receive notice of this Court's Opinion 

and Order within 21 days of entry, this Court may grant Petitioner's motion only if two conditions 

are satisfied. First, Petitioner must file the motion “not later than 30 days after the expiration of 

the time otherwise set for bringing appeal.” 28 U.S.C. § 2107(c); see also IUE AFL-CIO Pension 

Fund v. Barker & Williamson, Inc., 788 F.2d 118, 122 n.1 (3d Cir. 1986). Second, Petitioner must 

show either excusable neglect or good cause. 28 U.S.C. § 2107(c); see also In re Diet Drugs Prod. 

Liab. Litig., 401 F.3d 143, 153-54 (3d Cir. 2005). 
4

As to the time requirement, the Opinion and Order which Petitioner seek to appeal were 

entered on December 7, 2012. The time for Petitioner to file a timely notice of appeal under Rule 

4(a)(1)(A) therefore expired January 7, 2013.2 The time to file a timely motion to extend the time 

expired 30 days later on February 6, 2013. Since the cover letter, motion, and certificate of 

service for Petitioner's motion for extension of time to file a notice of appeal are dated April 24, 

2013, Petitioner has not shown that he handed his motion papers to prison officials for mailing to 

the Clerk on or before February 6, 2013. See Fed. R. App. P. 4(c)(l) (“If an inmate confined in 

an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is 

deposited in the institution's internal mail system on or before the last day for filing.”). 

Thus, the motion fails to satisfy the condition that it was filed “not later than 30 days after 

the expiration of the time otherwise set for bringing appeal.” 28 U.S.C. § 2107(c); see also Fed. 

R. App. P. 4(a)(5)(A)(i). This Court must therefore deny Petitioner’s motion to extend the time to 

file a notice of appeal.3

 

III. CONCLUSION 

Based on the foregoing reasons, the Court denies Petitioner’s motion for leave to appeal as 

within time. 

 

s/ Esther Salas -

Esther Salas, U.S.D.J. 

 

2

 Since the last day of the time period fell on a Sunday, the time period of Rule 4(a)(1)(A) “continue[d] to run until the 

end of the next day.” Fed. R. App. P. 26(a)(1)(C). 

3

 Although this result might seem harsh in light of Petitioner’s alleged administrative segregation and lack of access to 

his court filings, “this Court has no authority to create equitable exceptions to [Rule 4’s] jurisdictional requirements.” 

Cumberland Mut. Fire Ins. Co. v. Express Prods., Inc., 2013 WL 3481687, at *3 (3d Cir. June 24, 2013) (quoting 

Bowles v. Russell, 551 U.S. 205, 214 (2007)) (discussing Rule 4).