United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
matter is before the Court on Defendant/Petitioner Daniel C.
Portee's Letter [1:09-CR-89, ECF No. 90] filed on January
3, 2018. The Defendant/Petitioner asks the Court to grant him
an extra 45 days from the date on which he receives his
personal property, including all legal papers in his
possession, subsequent to his transfer to another facility,
to file his notice of appeal. The Defendant/Petitioner
previously filed a similar letter making the same request on
November 13, 2017 [1:09-CR-89, ECF No. 87; 1:16-CV-168, ECF
No. 4]. On November 16, 2017, the Court denied, without
prejudice, his request [1:09-CR-89, ECF No. 88; 1:16-CV-168,
ECF No. 5], finding that although his request was timely, he
had not yet shown good cause for the Court to extend his time
to file a notice of appeal.
support of his renewed request, the Defendant/Petitioner
states that, at the time the Court issued its November 16,
2017, Order, he was in transit to USP Coleman-1 from the
FCI-Gilmer Special Housing Unit, during which he did not have
access to his personal documents or to a law library.
(See Ltr. 1.) Moreover, the Court's Order was
sent to the FCI-Gilmer facility, and the Defendant/Petitioner
did not receive the Order until December 19, 2017.
(Id.) The Defendant/Petitioner states that he
received his personal property on November 30, 2017.
(Id. at 2.) Further, he states that he was deprived
of his CPAP machine during his transfer and, due to a lack of
communication, his medical needs were not properly met.
(Id. at 1-2.) He also states that on November 30,
2017, and December 3, 2017, he was threatened by other
inmates at the USP Coleman-1 facility. (Id. at 2.)
On December 15, 2017, the Defendant/Petitioner's case
manager informed him that he would be transferred again until
his appeal was heard, and on December 19, 2017, he was
informed that he would be again deprived of his personal
property for an indeterminate amount of time. (Id.)
Federal Rules of Appellate Procedure provide that any notice
of appeal in a civil case “must be filed with the
district clerk within 30 days after entry of the judgment or
order appealed from.” Fed. R. App. Pro. 4(a)(1)(A).
However, Rule 4(a)(1)(B) requires that a notice of appeal in
a civil case in which the United States is a party be filed
in the district court within 60 days of the entry of judgment
or order appealed. On October 20, 2017, this Court issued an
Opinion and Order [1:16-cv-168, ECF No. 1; 1:09-CR-89, ECF
No. 84], denying the Defendant/Petitioner's Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence By a Person in Federal Custody [1:09-CR-89, ECF No.
65] because his sentence was not “imposed in violation
of the Constitution or laws of the United States” and
was not “in excess of the maximum authorized by
law.” 28 U.S.C § 2255(a). Because the United
States is a party to this case, the deadline for the
Defendant/Petitioner to file a notice of appeal from the
Court's denial of his § 2255 Petition was December
4(a)(5)(A) provides that “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.” The Defendant/Petitioner filed the
present Request on January 3, 2018, and his Request is
into consideration the Defendant/Petitioner's situation,
the Court finds that the Defendant/Petitioner has shown good
cause so as to warrant an extension of time to file a notice
of appeal. However, the Court is without power to grant the
Defendant/Petitioner the full extension that he seeks. The
Defendant/Petitioner seeks an extension of 45 days after the
return of his personal property. Rule 4(a)(5)(C) provides:
“No extension under this Rule 4(a)(5) may exceed 30
days after the prescribed time or 14 days after the date when
the order granting the motion is entered, whichever is
later.” The prescribed time for the
Defendant/Petitioner to file a notice of appeal expired on
December 19, 2017. Therefore, a 30 day extension would extend
the Defendant/Petitioner's time to file a notice of
appeal to January 18, 2018. However, January 18, 2018, falls
fewer than 14 days after the date of this Order. Therefore,
the Defendant/Petitioner will have until January 30, 2018, 14
days from the date of this Order, in which to file his notice
of appeal if he so chooses.
Court advises the Defendant/Petitioner that, pursuant to the
Federal Rules of Appellate Procedure, a notice of appeal must
(1) “specify the party or parties taking the appeal,
” (2) “designate the judgment, order, or part
thereof being appealed, ” and (3) “name the court
to which the appeal is taken.” Fed. R. App. P. 3(c)(1).
The Defendant/Petitioner's notice of appeal need not
present the exact arguments he wishes to make on appeal.
foregoing reasons, the Court GRANTS the
Defendant/Petitioner's Request for an extension of time
to file a notice of appeal [1:09-CR-89, ECF No. 90], but only
until January 30, 2018, 14 days from the date of this Order.
The Court CAUTIONS the Defendant/Petitioner that failure to
file a ...