Free Order on Motion for Certificate of Appealability - District Court of Delaware - Delaware

Case 1 :04-cv—00363-KAJ Document 28 Filed 01/31/2006 Page1 of2
in THE UNITED STATES DISTRICT counr °;l;:1Y°.A‘. A
Fon THE DISTRICT OF DELAWARE JSS-? 3i iii 2= 37
RICHARD D. McCANE, )
Petitioner, g
v. g Civil Action No. 04-363-KAJ
RICHARD KEARNEY, g
Warden, and ATTORNEY )
GENERAL OF THE STATE )
OF DELAWARE, )
Respondents. g
O R D E R
At Wilmington this _é_£}/day of January, 2006;
IT IS ORDERED that:
1. Petitioner Richard D. McCane’s Second Motion for Extension of Time to File a
Certificate of Appealability," which I construe to be his Second Motion for Extension of
Time to File a Notice of Appeal, is GRANTED. See Fed. R. App. P. 4(a)(5). McCane
filed the instant motion within the time permitted by Fed. R. App. P. 4(a)(5)(A)(i), and he
provided notice to the Respondents as required by Fed. R. App. 4(a)(5)(B). I denied
McCane’S first motion for an extension of time after determining that his brief
explanations did not constitute good cause or excusable neglect. In the instant motion,
McCane contends that he had surgery during the tirst week of the original 30 day
appeal period, and that he did not have access to any of his legal materials clue to his

Case 1 :04-cv—00363-KAJ Document 28 Filed 01/31/2006 Page 2 of 2
confinement in the medical department. Although the issue is close, I conclude that
McCane has demonstrated "excusable neglect or good cause" justifying an extension of
time.‘ See Consolidated Frelghtways Corp. of Delaware v. Larson, 827 F.2d 916, 918
n. 3 (3d Cir. 1987); Fed. R. App. P. 4 (a)(5)(A)(ii).
2. l\/lcCane shall file his notice of appeal by February [(2 , 2006, which is ten
(10) days after the entry of this order. See Fed. R. App. P. 4(a)(5)(c)("No extension
under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 10 days after
the date when the order granting motion is entered, whichever is later).
3. The clerk is directed to mail this order to McCane immediately.
UN TE STATES D TRLCT JUDGE
/ ff!
l_//r
‘Pursuant to the Advisory Committee Notes to the 2002 Amendments to Fed. R.
App. P. 4, "the good cause standard applies in situations in which there is no fault. . .
the need for an extension is usually occasioned by something that is not within the
control ofthe movant." In contrast, "the excusable neglect standard applies in
situations in which there is fault." ld. The Third Circuit has identified some factors that
a district court applying the "excusabIe neglect standard" should consider: "(1) whether
the inadvertence reflects professional incompetence such as ignorance of the rules of
procedure; (2) whether the asserted inadvertence reflects an easily manufactured
excuse incapable of verification by the court; (3) whether the tardiness results from
counsel’s failure to provide for a readily foreseeable consequence; (4) whether the
inadvertence reflects a complete lack of diligence; or (5) whether the court is satisfied
that the inadvertence resulted despite counseI’s substantial good faith efforts toward
compliance." Consolidated Frelghtways Corp. of Delaware v. Larson, 827 F.2d 916,
919 (3d Cir. 1987)(where movant is represented by counsel).
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