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Anderson v. Lee

United States District Court, E.D. Louisiana

October 1, 2019

TERRELL ANDERSON, Plaintiff
v.
CHAD LEE, WARDEN, Defendants

         SECTION: “E” (3)

          ORDER AND REASONS

          SUSIE MORGAN UNITED STATES DISTRICT JUDGE

         Before the Court is a motion for out of time appeal[1] and a supplemental motion for out of time appeal[2] filed by Petitioner Terrell Anderson. For the following reasons the motions are DENIED.

         BACKGROUND

         Petitioner Terrell Anderson is a state prisoner who was convicted under Louisiana law of armed robbery.[3] On February 11, 2009, he was sentenced to a term of twenty-five years imprisonment.[4] After exhausting his state-court remedies, Petitioner filed an application for a writ of habeas corpus in federal court.[5] On August 29, 2014, the Court entered an order dismissing Petitioner's application as untimely, [6] entered judgment on that order, [7] and denied Petitioner a certificate of appealability.[8] Petitioner now seeks an out-of-time appeal of the Court's August 29, 2014, judgment.[9]

         LEGAL STANDARD

         Pursuant to Federal Rule of Appellate Procedure 22(b)(1), “[i]n a habeas corpus proceeding . . . the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. §2253(c). . . . If the district judge has denied the certificate, the applicant may request a circuit judge to issue it.” This request may either be explicit or if no express request for a certificate is filed, a “notice of appeal constitutes a request addressed to the judges of the court of appeals.”[10]

         As for timing, under Federal Rule of Appellate Procedure 4(a)(1), a notice of appeal “must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.” This time limit is jurisdictional.[11] It may be extended, however, under the following two exceptions.[12] First, Federal Rule of Appellate Procedure 4(a)(5) provides:

(A) The 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.

Second, Federal Rule of Appellate Procedure 4(a)(6) provides:

         The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:

(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be ...

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