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Heaton v. Gaetz

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


July 14, 2009

STUART HEATON, PETITIONER,
v.
DONALD GAETZ, RESPONDENT.

The opinion of the court was delivered by: Murphy, District Judge

MEMORANDUM AND ORDER

Judgment on Heaton's habeas petition was entered on January 16, 2009 (see Doc. 24), and Heaton filed a notice of appeal on February 19, 2009 (see Doc. 25). This filing was two days late pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A).

On March 10, 2009, Heaton filed a motion asking this Court for a "60 day time extension so [he] may learn an [sic] understand what I need to do to file my appeal." (Doc. 36). The Court misunderstood his request and denied the motion. The Court of Appeals now has remanded the appeal for the Court to consider this document a motion to extend the time to appeal pursuant to Federal Rule of Appellate Procedure 4(a)(5).

Pursuant to this Rule,

[t]he district court may extend the time to file a notice of appeal if: (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 Rule 4(a) expires, that party shows excusable neglect or good cause.

FED. R. APP. P. 4(a)(5)(A). Heaton alleges that he is trying to hire a lawyer to represent him on appeal and that the mail is slow getting to him.

Heaton's request was made within 30 days of his time for appeal expiring, and he has shown excusable neglect for his tardiness. Accordingly, his motion for extension of time (Doc. 36) is GRANTED.

IT IS SO ORDERED.

G. Patrick Murphy United States District Judge

20090714

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