CURRICA v. MILLER (2020)

Calvin F. Currica seeks to appeal the district court's order dismissing his 28 U.S.C. § 2254 (2018) petition. Parties to a civil action are accorded 30 days after the entry of the district court's final judgment or order to note an appeal. Fed. R. App. P. 4(a)(1)(A). The district court may, however, extend the time to file a notice of appeal if the party moves for an extension of the appeal period within 30 days after the expiration of the original appeal period and demonstrates excusable neglect or good cause to warrant an extension. Fed. R. App. P. 4(a)(5). “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007).

The district court entered its order on September 13, 2019. Currica filed the notice of appeal on October 24, 2019, after the expiration of the 30-day appeal period but within the excusable neglect period. See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (establishing prison mailbox rule). Because Currica's notice of appeal included a request for an extension of time in which to file an appeal, we construe it as a timely request for an extension of the appeal period pursuant to Rule 4(a)(5). Accordingly, we remand this case to the district court for further factual development on the limited question of whether Currica has shown excusable neglect or good cause warranting an extension of the appeal period. The record, as supplemented, will then be returned to this court for further consideration.

REMANDED

PER CURIAM:

Remanded by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.