United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION AND ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE
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].
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
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
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.
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.
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.
Timeliness of Notice of Appeal and Motion for Extension of
Time in Which to File Notice of Appeal
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.
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
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.
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 ...