United States District Court, D. Nebraska
JONATHON L. ARMENDARIZ, Petitioner,
SCOTT R. FRAKES, Director of the Nebraska Department of Corrections, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on Petitioner's Motion to
Reopen Judgment (Filing No. 17), Motion for Order
Extending Time for Appeal (Filing No. 18), and
Motion for Leave to Proceed In Forma Pauperis (Filing No.
16). The motions will be denied.
2, 2016, this court dismissed Petitioner's habeas
petition with prejudice and entered judgment. (Filing Nos.
13, 14.) On November 21, 2016, Petitioner
filed a Notice of Appeal (Filing No. 15), Motion for
Leave to Proceed In Forma Pauperis (Filing No. 16),
Motion to Reopen Judgment (Filing No. 17), and
Motion for Order Extending Time for Appeal (Filing No.
Rule of Appellate Procedure 4 (“Rule 4”) governs
the time in which a notice of appeal must be filed. As set
forth in Rule 4, a notice of appeal “must be filed with
the district clerk within 30 days after entry of the judgment
or order appealed from.” Fed. R. App. P.
4(a)(1)(A). Rule 4 permits an extension of time in which
to file an appeal if (1) such extension is requested within
the “extension period, ” (i.e., within 30 days
after expiration of the appeal deadline); and (2) regardless
of the “extension period, ” the appellant shows
excusable neglect or good cause for the delayed filing of the
appeal. Fed. R. App. P. 4(a)(5)(A).
Notice of Appeal is clearly untimely under Rule 4. In
addition, the Notice was filed months after the 30-day appeal
period expired, meaning that the court's authority under
Fed. R. App. P. 4(a)(5) to extend the time to file a
notice of appeal for “excusable neglect or good
cause” has also expired.
4(a)(6) provides that the district court may reopen the time
to file an appeal for a period of 14 days. However, the
following conditions must be satisfied before the court can
grant such relief: (1) the moving party did not receive
notice under Federal Rule of Civil Procedure 77(d) of the
entry of the judgment, (2) the motion is filed within 180
days after the judgment or order is entered or within 14 days
after the moving party receives notice under Rule 77(d),
whichever is earlier, and (3) the court finds that no party
would be prejudiced. Fed. R. App. P. 4(a)(6). Petitioner does
not qualify for relief under this provision as judgment was
entered more than 180 days before the Motion to Reopen was
filed, and the court is unable to conclude that no party
would be prejudiced by reopening the appeal period.
also is not entitled to relief under Fed. R. Civ. P. 60,
which allows the court to relieve a party from a final
judgment in certain situations. However, to succeed on a
motion under Rule 60, the moving party must show exceptional
circumstances justify relief. Brooks v.
Ferguson-Florissant School District, 113 F.3d 903, 904
(8th Cir. 1997). Petitioner argues that he is entitled to
relief under Rule 60 because, at the time judgment was
entered, he was in administrative detention and did not have
access to the law library. The fact that Petitioner was in
segregation at the time the judgment was entered does not
constitute an exceptional circumstance. Moreover, Petitioner
does not allege that he did not receive notice of the
judgment or that he was prevented from filing documents with
the court. See Marshall v. Wisconsin, Case No.
13-cv-111-pp, 2016 WL 799130, *2 (E.D. Wis. Feb. 29,
2016) (stating that limited access to law library and limited
financial resources “do not justify the granting of an
extraordinary remedy under Rule 60").
also argues that he is entitled to relief under Rule 60
because the clerk of court did not advise Petitioner as to
appellate filing deadlines and the appropriateness of filing
a motion for extension of time. Petitioner relies on
Campbell v. White, 721 F.2d 644 (8th Cir. 1983), in
which the Eighth Circuit Court of Appeals indicated that
court clerks should notify litigants of the time limitations
for filing notices of appeal. To the extent, if any, that
Campbell requires court clerks to provide notice of
time limitations to pro se litigants, the case is
distinguishable on the basis that it involved an appeal from
a civil rights action brought pursuant to 42 U.S.C. §
1983, not, as here, a federal habeas proceeding. Therefore,
Petitioner has failed to demonstrate exceptional
circumstances justifying relief under Rule 60.
Plaintiff's Notice of Appeal is untimely, the court
certifies that the appeal is not taken in good faith. 28
U.S.C. § 1915. Therefore, Petitioner's Motion
for Leave to Proceed In Forma Pauperis (Filing No.
16) will be denied.
Petitioner's Motion to Reopen Judgment (Filing No.
17) and Motion for Order Extending Time for ...