filed: December 28, 1990; As Corrected January 4, 1991.
On Appeal From the United States District Court For the District of New Jersey; Civil No. 88-03948.
Becker, Nygaard, Circuit Judges, and Louis H. Pollak, District Judge.*fn*
Thomas C. Ramseur appeals from the district court's order denying his ex parte motion to extend the time for filing a notice of appeal pursuant to Fed. R. App. P. 4(a)(5). Because we find that the district court abused its discretion in denying Ramseur's motion, we will reverse.
This is a habeas corpus action, 28 U.S.C. § 2254. After exhausting his state remedies, Ramseur, who had been convicted of murder and related charges, petitioned the district court for the District of New Jersey for a habeas corpus writ. In an opinion and order dated March 14, 1990, the district court denied Ramseur's habeas petition and found no probable cause for appeal.
On April 10, 1990, Ramseur's counsel mailed a notice of appeal from his office in East Orange, New Jersey to the clerk of the district court, whose office is located less than five miles away in Newark, New Jersey. Ramseur's notice of appeal, however, was not received by the district court and stamped "filed" until April 23, 1990, thirteen days after it was mailed, and seven days after the 30-day time period for filing appeals had lapsed, see Fed. R. App. P. 4(a)(1).*fn1
Ramseur's counsel thereupon moved for an extension of time in which to appeal, pursuant to Fed. R. App. P. 4(a)(5). Rule 4(a)(5) provides that the district court, upon the showing of excusable neglect or good cause, may extend the time for filing a notice of appeal. Ramseur's counsel argued that the "inexplicable" thirteen-day delay constituted excusable neglect. The district court, however, denied this motion stating only that Ramseur had not made an adequate showing of excusable neglect. This appeal followed. We will review for abuse of discretion.*fn2
Federal Rule of Appellate Procedure 4(a)(5) states in pertinent part:
The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a). Any such motion which is filed before expiration of the prescribed time may be ex parte unless the court otherwise requires.
In Consolidated Freightways Corp. of Del. v. Larson, 827 F.2d 916 (3d Cir. 1987), cert. denied, 484 U.S. 1032, 98 L. Ed. 2d 775, 108 S. Ct. 762 (1988), we interpreted "Rule 4(a)(5) to require a finding of excusable neglect in those instances where the court, after weighing the relevant considerations is satisfied that counsel has exhibited substantial diligence, professional competence and has acted in good faith to conform his or her conduct in accordance with the rule." Id. at 920. We noted, further, that:
The rules governing timeliness of appeals exist to promote fairness, and to promote prompt notice of appeal thereby avoiding the prejudicial effect of reopening litigation which the opposing party had assumed was closed. The length of the delay and the basis of the delay affect the overall fairness concern. Where . . . the delay was minimal, and where the court has determined that the delay was not the result of any bad faith but rather occurred despite counsel's substantially ...