                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0203n.06

                                           No. 10-6060
                                                                                         FILED
                          UNITED STATES COURT OF APPEALS
                                                                                     Feb 21, 2012
                               FOR THE SIXTH CIRCUIT
                                                                                LEONARD GREEN, Clerk
THOMAS NEAL JACKSON,                                )
                                                    )
       Petitioner-Appellant,                        )       ON APPEAL FROM THE
                                                    )       UNITED STATES DISTRICT
v.                                                  )       COURT FOR THE EASTERN
                                                    )       DISTRICT OF KENTUCKY
LARRY D. CHANDLER, Warden,                          )
                                                    )
       Respondent-Appellee.                         )
                                                    )




       BEFORE: MERRITT and COOK, Circuit Judges; and COX, District Judge.*


       PER CURIAM. Thomas Neal Jackson, a Kentucky prisoner, appeals a district court order

denying his motion for an extension of time to file a notice of appeal. Finding no abuse of

discretion, we affirm.

       In 2008, Jackson filed a habeas corpus petition under 28 U.S.C. § 2254, challenging his 2002

conviction for murder, for which he was sentenced to thirty-three years in prison. Jackson was

represented by Meggan Smith, a state public defender, who was assigned Jackson’s case at the

conclusion of his state post-conviction proceedings. The district court dismissed the petition as

untimely, concluding that it was filed twenty days after the limitations period ended and that

counsel’s error in calculating the timeliness of the petition did not warrant equitable tolling. The

district court’s order and judgment were entered on March 26, 2010.


       *
       The Honorable Sean F. Cox, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 10-6060
Jackson v. Chandler

       The deadline for Jackson to file a timely notice of appeal was April 26, 2010. See Fed. R.

App. P. 4(a)(1), 26(a)(1). Jackson did not file his notice of appeal until April 29, 2010, and this

court ultimately dismissed his appeal as untimely. In the meantime, Jackson moved the district court

for an extension of time in which to file an appeal. In the motion, Smith stated that she had prepared

the notice of appeal on April 27, 2010, “one day before it was due to be filed,” but neglected to tell

her administrative assistant to send it via overnight mail, resulting in the notice being received “one

day past the deadline for filing.” We note, however, that Jackson’s notice of appeal was actually

three days late, not one. Smith calculated the last day for filing a timely appeal as April 28, 2010,

by adding three days for service under Federal Rule of Appellate Procedure 26(c). That rule does

not extend the time to file a notice of appeal. See Ultimate Appliance CC v. Kirby Co., 601 F.3d

414, 416 (6th Cir. 2010) (“[T]he Rule 4 clock starts when a judgment is entered, not when service

of the judgment is effected.”).

       The district court denied the motion. Like the parties, the district court treated Jackson’s

notice of appeal as being filed just one day late, but it concluded that counsel’s oversight did not

constitute “excusable neglect,” as required to grant an extension. See Fed. R. App. P. 4(a)(5).

Jackson filed this timely appeal.

       District courts have only limited authority to grant an extension of the thirty-day time limit

for filing an appeal. See 28 U.S.C. § 2107(c); Bowles v. Russell, 551 U.S. 205, 208 (2007).

Relevant to this case, a district court may grant a motion for an extension of time if the moving party

“shows excusable neglect or good cause,” provided the motion is filed within thirty days of the

expiration of the time prescribed for filing an appeal. Fed. R. App. P. 4(a)(5)(A). We review the




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No. 10-6060
Jackson v. Chandler

denial of a motion for an extension of time for an abuse of discretion. Nicholson v. City of Warren,

467 F.3d 525, 526 (6th Cir. 2006).

       Whether neglect is “excusable” is an equitable determination that weighs “all relevant

circumstances,” including the danger of prejudice to the other party, the length of the delay and its

effect on the judicial proceeding, the reason for the delay and whether it was within the moving

party’s control, and whether the moving party acted in good faith. Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993). The excusable neglect standard is “strict,

and can be met only in extraordinary cases.” Turner v. City of Taylor, 412 F.3d 629, 650 (6th Cir.

2005) (quoting Marsh v. Richardson, 873 F.2d 129, 130 (6th Cir. 1989)). Clients are held

accountable for the acts and omissions of their attorneys, and attorney inadvertence generally does

not constitute excusable neglect. See Pioneer, 507 U.S. at 392, 396; McCurry ex rel. Turner v.

Adventist Health Sys./Sunbelt, Inc., 298 F.3d 586, 594-95 (6th Cir. 2002).

       The district court in this case found no extraordinary circumstances warranting relief, noting

that the filing of a notice of appeal is a routine task, counsel offered no explanation for her failure

to prepare and mail the notice of appeal earlier, and being busy with other matters does not constitute

excusable neglect. See Baker v. Raulie, 879 F.2d 1396, 1400 (6th Cir. 1989).

       Jackson argues that the district court abused its discretion by failing to consider all of the

factors set forth in Pioneer and that its reliance on Baker was misplaced. But the Pioneer factors “do

not carry equal weight; the excuse given for the late filing must have the greatest import.” United

States v. Munoz, 605 F.3d 359, 372 (6th Cir. 2010) (citation omitted), cert. denied, 131 S. Ct. 1813

(2011); see United States v. Thompson, 82 F.3d 700, 702 (6th Cir. 1996) (explaining that the district

court must examine questions of prejudice and bad faith only after finding excusable neglect).

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No. 10-6060
Jackson v. Chandler

Accordingly, the district court did not abuse its discretion by focusing on the proffered reason for

the delay.

        Nor did the district court abuse its discretion by concluding that counsel’s error did not

constitute excusable neglect. Jackson’s attempt to distinguish Baker is unpersuasive. In that case,

counsel prepared and mailed the notice of appeal on the day it was due, September 2, and it arrived

in the district court on the following business day. Baker, 879 F.2d at 1397. Counsel explained that

he missed the deadline because he was involved in another trial from August 22 until September 2.

Id. We held that the district court abused its discretion by granting an extension, reasoning that

counsel did not address the “obvious question” of why he did not file the notice of appeal before the

other trial began, that the filing of a notice of appeal does not take much thought or time, and that

being busy with other matters does not constitute excusable neglect. Id. at 1399-1400. Smith did

not prepare the notice of appeal until after the deadline had passed, which makes her asserted excuse

– that she forgot to tell her administrative assistant to use overnight mail – even less compelling.

And, as in Baker, Smith offered no explanation for not filing the notice of appeal earlier in the thirty-

day time period. Under such circumstances, counsel’s conduct “may well amount to neglect, but it

is not excusable.” Id. at 1400.

        For these reasons, we affirm the district court’s judgment.




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