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Bartley v. Beckstrom

United States District Court, E.D. Kentucky, Southern Division

January 18, 2019

DONALD TERRY BARTLEY, Petitioner,
v.
GARY BECKSTROM, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOSEPH M. HOOD SENIOR U.S. DISTRICT JUDGE

         Petitioner Donald Terry Bartley, a state prisoner proceeding pro se, moved for an enlargement of time in which to file a notice of appeal [DE 34] and tendered a notice of appeal [DE 35]. Bartley also filed a motion for a certificate of appealability. [DE 36].

         First, Bartley's notice of appeal is timely pursuant to the prison mailbox rule. As a result, Bartley's motion for an enlargement of time to file notice of appeal [DE 34] is DENIED AS MOOT. Second, Bartley's notice of appeal transfers jurisdiction from this Court to the Court of Appeals. As such, since Bartley's motion for a certificate appealability [DE 36] raises issues that are also at issue in his appeal, the Court has no jurisdiction over the matter and Bartley's motion must be DENIED.

         I. Procedural History

         On December 10, 2018, the Court accepted and adopted the report and recommendation of Magistrate Judge Atkins [DE 29, Report and Recommendation], denied Bartley's motion pursuant to 28 U.S.C. § 2254 [DE 16, Motion for Writ of Habeas Corpus] with prejudice, and declined to issue a certificate of appealability. [DE 32, Memorandum Opinion and Order; DE 33, Judgment].

         Subsequently, Bartley filed a motion for enlargement of time in which to file notice of appeal [DE 34]. The motion contains a notice that indicates Bartley delivered the motion for enlargement to prison staff for mailing on January 4, 2019. [Id. at 2, Pg ID 481]. The motion for enlargement was filed in the record on January 16, 2019.

         The text and certificate of service in Bartley's notice of appeal indicates that Bartley delivered the notice of appeal to prison staff for mailing on January 10, 2019. [DE 35 at 1, Pg ID 483]. The notice of appeal was filed in the record on January 16, 2019.

         Finally, Bartley also filed a motion for certificate of appealability [DE 36]. The certificate of service on the motion for certificate of appealability indicates that Bartley provided the motion to prison staff for mailing on January 10, 2019. [DE 36 at 8, Pg ID 492]. The Court will consider the timeliness of the notice of appeal and both motions below.

         II. Analysis

         A. Timeliness of Notice of Appeal and Motion for Extension of Time in Which to File Notice of Appeal

         Pursuant to Federal Rule of Appellate Procedure 4(a)(1), Bartley had thirty days after the entry of the judgment or order appealed from to file a notice of appeal. Here, the memorandum opinion and order [DE 32] and judgment [DE 33] denying Bartley's petition for habeas relief were entered on December 10, 2018.

         Rule 26(a) explains how to compute time under the Federal Rules of Appellate Procedure. Rule 26(a)(1) states that “when the period is stated in days . . . (A) exclude the day of the event that triggers the period; (B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and (c) include the last day of the period” unless the last day falls on a Saturday, Sunday, or legal holiday.

         As a result, pursuant to Rule 26(a)(1)(A), the time for the thirty-day period in which to file notice of appeal would begin running on December 11, 2018, the day after the opinion and judgment were entered. Pursuant to Rule 26(a)(1)(B), the Court must count all intermediate days including Saturdays, Sundays, and legal holidays. Thus, under Rule 26, thirty days from December 11, 2018, creates a deadline for filing notice of appeal on Thursday, January 10, 2019. January 10th did not fall on a federal holiday. As such, Bartley had until Thursday, January 10, 2019, to file notice of appeal based on denial of his habeas petition.

         But that doesn't end the analysis, because, since Bartley is an incarcerated state inmate proceeding pro se, the prison mailbox rule applies. Under the prison mailbox rule, a pro se prisoner's notice of appeal is typically deemed “filed at the time [the pro se prisoner] delivered it to the prison authorities for forwarding to the court clerk.” Houston v. Lack, 487 U.S. 266, 276 (1988); Tanner v. Yukins, 776 F.3d 434, 436 (6th Cir. 2015) (“notice of appeal was considered filed when it reached the mailroom”); see also Richard v. Ray, 290 F.3d 810, 813 (6th Cir. 2002) (prison mailbox rule for filing applies to civil complaints ...


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