United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on the Notice of Appeal
(filing no. 12) filed by Petitioner Justin Gardner
on May 7, 2018. Also before the court are two memorandums
from the Clerk of the Court requesting a ruling as to the
timeliness of Petitioner's notice of appeal and
Petitioner's authorization to proceed in forma pauperis
on appeal. (Filing No. 13; Filing No. 14.)
to Federal Rule of Appellate Procedure 4(a)(1)(A), the notice
of appeal in a civil case must be filed within 30 days of the
entry of judgment. “A timely notice of appeal is both
mandatory and jurisdictional.” Burgs v. Johnson
Cnty., Iowa, 79 F.3d 701, 702 (8th Cir. 1996). Moreover,
an untimely notice of appeal cannot serve as a motion for
extension of time to file an appeal. Id. A district
court may extend the time to file a notice of appeal if a
party moves for an extension of time and shows excusable
neglect or good cause, provided that the party moves for the
extension of time within 30 days of the expiration of the
30-day period set out in Rule 4(a)(1)(A). Fed. R. App. P.
4(a)(5)(A). In addition, if a party files one of the
post-judgment motions listed in Rule (a)(4)(A), the time to
file the appeal runs from the entry of the order disposing of
the motion. Fed. R. App. P. 4(a)(4)(A).
the court entered a final judgment dismissing the Petition
for Writ of Habeas Corpus on December 5, 2017. (Filing Nos.
4 and 5.) On December 21, 2017, Petitioner
filed what the court liberally construed as a motion for
relief from judgment pursuant to Federal Rule of Civil
Procedure 60(b). (Filing No. 6.) The court entered
an order overruling Petitioner's motion on January 17,
2018. (See Filing No. 7.) Therefore, the final day
for filing a timely notice of appeal was February 16, 2018.
See Fed. R. App. P. 4(a)(4)(A)(vi) (“[T]ime to
file an appeal runs for all parties from the entry of the
order disposing of the . . . motion . . . for relief under
Rule 60 if the motion is filed no later than 28 days after
the judgment is entered.”). Petitioner's Notice of
Appeal is dated March 5, 2018,  and stamped as filed on May 7,
2018. (Filing No. 12.) Because the Notice of Appeal
is dated March 5, 2018, it could not have been deposited in
the prison's mail system within the prescribed time, and
in any case, it does not include the required declaration
setting out the date it was deposited in the prison's
mail system. SeeFed. R. App. P. 4(c)(1) (stating
prisoner's notice of appeal is timely filed if deposited
in the institution's internal mail system on or before
the last day for filing and accompanied by a declaration as
on March 2, 2018, Petitioner filed correspondence with the
court which the court liberally construed as a motion for
reconsideration (filing no. 8) and a motion to
extend the time to file a notice of appeal (filing no.
9). The court denied both motions in an order dated
April 2, 2018, specifically finding that the motion for an
extension was filed outside the time limits imposed by Rule
4(a)(5) of the Federal Rules of Appellate Procedure.
(SeeFiling No. 10.) The court now recognizes that
its conclusion was in error. As stated above, Petitioner had
until February 16, 2018, to file a timely notice of appeal,
which means Petitioner's motion to extend the time to
file a notice of appeal was filed within thirty days after
the original thirty-day deadline had passed and was not
inquiry does not end there. Rule 4(a)(5) allows a party to
move the district court to extend the time to file a notice
of appeal if “(a) he moves no more than thirty days
after the original thirty day deadline has passed, and
(b) he shows good cause.” Pugh v.
Minnesota, 380 Fed.Appx. 558, 559 (8th Cir. 2010)
(emphasis added). Upon reconsideration of Petitioner's
motion to extend the time to appeal (filing no. 9),
the court finds he has shown good cause based on his
representations that prison officials have delayed the
sending and delivery of his legal mail. Accordingly, the
court vacates its prior Memorandum and Order (filing no.
10) dated April 2, 2018, to the extent it denied
Petitioner's motion to extend. The court now finds that
Petitioner's motion to extend the time to file a notice
of appeal should be granted and his Notice of Appeal is
his Notice of Appeal, Petitioner failed to include the
$505.00 appellate filing and docket fees. Petitioner has not
previously been granted leave to proceed in forma pauperis in
the district court in connection with his § 2254
petition. Thus, Fed. R. App. P. 24(a)(3), which continues in
forma pauperis status on appeal without further
authorization, does not apply. “An appeal may not be
taken in forma pauperis if the trial court certifies in
writing that it is not taken in good faith.” 28 U.S.C.
§ 1915(a)(3). The court hereby certifies that the appeal
filed by Petitioner in this case is frivolous and not taken
in good faith for the reason that his habeas petition was
dismissed without prejudice for failure to file a motion
to proceed in forma pauperis or pay the $5.00 filing fee by
the court-ordered deadline. Since the appeal is not taken in
good faith, the petitioner cannot file an appeal in forma
pauperis. SeeFed. R. App. P. 24(a)(3) and 28 U.S.C.
THEREFORE ORDERED that:
court's prior Memorandum and Order (filing no.
10) dated April 2, 2018, is vacated, in part, to the
extent it denied Petitioner's motion to extend. The court
now finds that Petitioner's motion to extend the time to
file a notice of appeal (filing no. 9) should be
granted and his Notice of Appeal (filing no. 12) is
court certifies that the appeal is not taken in good faith,
and the court will not act on Petitioner's notice of
appeal. (Filing No. 12.)
clerk of court is directed to send a copy of Petitioner's
notice of appeal and a copy of this Memorandum and Order to
the Eighth Circuit Court of Appeals.
 Petitioner's Notice of Appeal was
received in the clerk's office on the same date as
correspondence from Petitioner dated May 2, 2018. (See
Filing No. 11.) Thus, it appears the correspondence and
Notice of Appeal were mailed by Petitioner at the same time.
The court will, however, assume that the March 5, ...