Today, the Circuit gives us a good reminder to stay on top of those notices of appeal (NOA). Jackson v. Chandler, No. 10-6060 (6th Cir. Feb. 21, 2012) (unpublished). (It's still listed on "today's opinions.")
Judges Merritt, Cook, and Cox (E.D. Mich.). Per curiam.
Habeas action from state court. Petitioner filed his 2254 in 2008, challenging his 2002 murder conviction. The district court dismissed the petition as untimely. Also found that counsel's error in calculating the timeliness of the petition did not call for equitable tolling. The district court entered its judgment on March 26, 2010. Deadline to file notice of appeal was April 26, 2010. Not filed till April 29, 2010. Court of appeals dismissed as untimely. While the appeal was pending, the petitioner moved the district court for an extension of time in which to file the appeal.
Counsel claimed she forgot to tell her assistant to overnight the NOA. So it allegedly got to the court a day late. In reality, however, the NOA was three days late. Federal Rule of Appellate Procedure 26(c) does not give the three extra days for NOAs. Court cites Ultimate Appliance CC v. Kirby Co., 601 F.3d 414, 416 (6th Cir. 2010).
The district court denied the motion, finding that counsel's oversight did not constitute excusable neglect. The petitioner appealed.
Under 28 U.S.C. 2107(c), district courts have only limited authority to extend the time limits for filing an NOA. A district court may extend for excusable neglect or good cause if the motion is filed within thirty days of the expiration of the prescribed time. Federal Rule of Appellate Procedure 4(a)(5) governs. Findings of excusable neglect are "extraordinary." And clients are held accountable for their attorneys' actions/omissions. Attorney inadvertence usually does not meet the standard for excusable neglect. Being busy is not excusable neglect.
The court of appeals affirmed.
Remember, Sixth Circuit Rule 101(a) says trial counsel in criminal cases must continue to represent a client on appeal until the Circuit explicitly relieves the attorney. We're on the case till we're off! And the Court reminds us here that there's no excuse for filing NOAs late!
