The opinion of the court was delivered by: TENNEY
In an Opinion and Order dated July 20, 1979, the Court denied Fernando Martinez' habeas corpus petition. By motion made returnable August 20, 1979, Martinez, by his counsel, Juris G. Cederbaums, moved for an order pursuant to 28 U.S.C. § 2107 extending Martinez' time to appeal the denial of the petition. On August 28, the Court denied that motion by Memorandum Endorsement. Cederbaums now seeks reargument of that denial and seeks permission to file a notice of appeal. For the reasons given briefly below, the motion for reargument is granted.
In the motion for an extension of time, Cederbaums stated that he had filed with Governor Hugh Carey of the State of New York a petition for executive commutation of sentence and stated also that the commutation, if granted, would render this action moot. Affirmation of Juris G. Cederbaums, dated August 8, 1979, P 3. Cederbaums expected a decision "in the very near future." Id. P 4. He explained that Martinez' family "is of limited financial means, and the expenses of perfecting an appeal in this matter are such that we want to avoid them unless absolutely necessary." Id.
The Court denied the motion for extension by Memorandum Endorsement dated August 28, 1979. The Court concluded that 28 U.S.C. § 2107, by its plain terms, did not encompass the basis for Martinez' request. Specifically, the Court reasoned that Martinez sought the extension in order to conserve financial resources, but that section 2107 allows a district court to grant an extension only "upon a showing of excusable neglect based on failure of a party to learn of the entry of the judgment, order or decree." Accordingly, the Court concluded that it was powerless to grant the requested relief.
On October 2, 1979 Cederbaums moved to reargue the Court's denial of the extension of time to appeal. Affidavit of Juris G. Cederbaums, dated September 27, 1979. He set out additional circumstances explaining his failure to file a timely notice of appeal from the Court's original decision. One such circumstance was his receiving notice from the State Attorney General's office stating that it would not oppose the request for an extension. He subsequently called this Court's chambers and "expressed his feeling that the motion would be granted since opposing counsel had consented." Id. P 4. The law clerk stated that Cederbaums could not assume that the motion would be granted.
On September 19, 1979, the day before a notice of appeal would have been due had the extension been granted Cederbaums again called the Court. He was informed that the motion for an extension had been denied on August 28. He explains that he never received notification of the denial of the extension from the Clerk of the Court of the Southern District ("Court Clerk").
Against this background, Cederbaums contends that the Court's failure to rule on the motion for an extension within the original time to appeal or its failure to give notice of the proposed ruling unfairly deprived his client of appeal. On that basis and on the Court Clerk's failure to notify him of the denial of the extension, he prays for a grant of his motion to reargue and for permission to file a notice of appeal and certificate of probable cause.
The Court notes that the motion for reargument was made more than 10 days after both the denial of the motion for an extension, on August 28, and counsel's learning of the denial, on September 19, and would appear to be barred on that basis. General Rule of the Southern District 9(m). The motion is timely, however, under Federal Rule of Civil Procedure 60(b)(1) (excusable neglect). Counsel has moved, as Rule 60(b)(1) requires, within a reasonable time and within a year of the denial of the extension. Alternatively, the Court could construe the motion as a new motion for an extension though the Court does not do so. Construing the motion as one within Rule 60(b)(1), the Court concludes that Martinez' counsel has demonstrated excusable neglect within the meaning of this Rule. The attorney's otherwise diligent efforts on behalf of his client, including seeking executive commutation, his timely efforts to ascertain the status of the motion, his failure to receive notice from the Court Clerk's office, and the lack of prejudice or even opposition from the State are among the factors favoring relief in this instance.
The next question is whether Cederbaums now demonstrates excusable neglect in failing to file a notice of appeal within the original 30-day period. In addressing this question, the Court notes that in its denial of the original and timely motion for an extension, the Court looked to the meaning of excusable neglect under 28 U.S.C. § 2107. That section provides in part:
The district court may extend the time for appeal not exceeding thirty days from the expiration of the original time herein prescribed, upon a showing of excusable neglect based on failure of a party to learn of the entry of the judgment, order or decree.
Based on that standard, the Court concluded that it was powerless to grant the extension. Memorandum Endorsement dated August 28, 1979. The Court should not, however, have relied on the limited statutory standard for excusable neglect under section 2107 in denying the extension. To the extent that section 2107 conflicts with Federal Rule of Appellate Procedure 4(a), the latter governs. 28 U.S.C. § 2072; 9 Moore's Federal Practice PP 201.07, 204.07 (2d ed. 1975). Rule 4(a) does differ from section 2107 in the pertinent provision. Rule 4(a) provides in part:
Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after ...