Free Order - District Court of Delaware - Delaware

Case 1 :04-cv—00363-KAJ Document 24 Filed 12/27/2005 Page1 of2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RICHARD D. McCANE, )
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Petitioner, )
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v. ) Civil Action N0. 04-363-KAJ
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RICHARD KEARNEY, )
Warden, and M. JANE )
BRADY, Attorney General )
of the State of )
Delaware, )
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Respondents. )
O R D E R
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At Wilmington this igyday of December, 2005;
IT IS ORDERED that;
Petitioner Richard D. McCane’s Motion for Extension of Time to File a Certificate
of Appealability, which I construe to be a Motion for Extension of Time to File a Notice
of Appeal, is DENIED. See Fed. R. App. P. 4(a)(5)(A). McCane filedhis Motion within
the time permitted by Fed. R. App. P. 4(a)(5)(A),‘ but he has failed to demonstrate
"excusabIe neglect or good cause" justifying the granting of such an extension.2
‘I denied McCane’s § 2254 petition on November 30, 2005. (D.|. 20; D.I. 21.)
McCane filed his Motion for an Extension of Time on December 15, 2005. (D.l. 22.)
Consequently, I can properly consider his Motion ex parte. See Fed. R. App. P.
4(¤I(5I(BI-
2F’ursuant 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. . .

Case 1 :04-cv—00363-KAJ Document 24 Filed 12/27/2005 Page 2 of 2
Although he asserts recent surgery as one reason for his inability to timely file a notice
of appeal, I\/IcCane has failed to demonstrate that the surgery occurred during the thirty
(30) day appeal period or how it has affected his ability to file a notice of appeal. See,
e.g., Gibbons v. U.S., 317 F.3d 852, 854 (8"‘ Cir. 2003). Additionally, McCane’s
assertion that he has limited access to the law library "due to the seasonal time of year
(Christmas)" fails to warrant an extension of time to file a notice of appeal.
—<><4 / ··
U ITE STATE/S DIST ICT JUDGE ‘
L_,/
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 fauIt." Id.
2

Case 1:04-cv-00363-KAJ

Document 24

Filed 12/27/2005

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Case 1:04-cv-00363-KAJ

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