Gordon v. U.S.

Full title: MICHAEL LEE GORDON, Petitioner, v. UNITED STATES OF AMERICA, Respondent

Court: United States District Court, S.D. Ohio, Eastern Division

Date published: Sep 18, 2006

Case No. C-2-01-1166, Crim. No. 2:97CR-167(6) (S.D. Ohio Sep. 18, 2006)

Opinion

Case No. C-2-01-1166, Crim. No. 2:97CR-167(6).

September 18, 2006

OPINION AND ORDER

JAMES GRAHAM, District Judge

On January 20, 2006, petitioner filed a notice of appeal of this Court's order of December 5, 2005, Doc. No. 301, denying his motions for relief from judgment. This matter is before the Court pursuant to a remand from the United States Court of Appeals for the Sixth Circuit for a ruling on petitioner's request for a certificate of appealability. For the reasons that follow, the request for a certificate of appealability is DENIED.

Pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A), a notice of appeal must be filed within thirty days after the judgment or order being appealed is entered. "A party's compliance with the time strictures of Rule 4(a)(1)(A) is `mandatory and jurisdictional.'" Intera Corp., et al., v. Henderson III, et al., 428 F.3d 605, 611 (6^th Cir. 2005), citing Peake v. First Nat'l Bank Trust, 717 F.2d 1016, 1018 (6th Cir. 1983); United States v. Means, 133 F.3d 444, 448 (6^th Cir. 1998). Although petitioner's notice of appeal was not received until after the thirty day time period had run, the certificate of service indicates that petitioner deposited his motion with prison authorities for filing on December 27, 2005. Thus, this Court concludes that petitioner's request for a certificate of appealability is timely. See Houston v. Lack, 487 U.S. 266, 270-72 (1988). Additionally, on December 12 and 15, 2005, petitioner filed motions for reconsideration of the Court's December 5, 2005, order, which motions were denied on January 11, 2006. See Federal Rule of Appellate Procedure 4(a)(4)(A), (B).¹

Where the Court dismisses a claim on procedural grounds, a certificate of appealability should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.

Slack v. McDaniel, 120 S.Ct. 1595 (2000). Thus, there are two components to determining whether a certificate of appealability should issue when a claim is dismissed on procedural grounds: "one directed at the underlying constitutional claims and one directed at the district court's procedural holding." The court may first "resolve the issue whose answer is more apparent from the record and arguments." Id.

1 Federal Rule of Appellate Procedure 4(a)(4)(A), (B) provides:

(4) Effect of a Motion on a Notice of Appeal.

(A) If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:

(i) for judgment under Rule 50(b);

(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;

(iii) for attorney's fees under Rule 54 if the district court extends the time to appeal under Rule 58;

(iv) to alter or amend the judgment under Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the motion is filed no later than 10 days after the judgment is entered.

(B)(i) If a party files a notice of appeal after the court announces or enters a judgment — but before it disposes of any motion listed in Rule 4(a)(4)(A) — the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.

(ii) A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or a judgment altered or amended upon such a motion, must file a notice of appeal, or an amended notice of appeal — in compliance with Rule 3(c) — within the time prescribed by this Rule measured from the entry of the order disposing of the last such remaining motion.

Upon review of the record, the Court concludes that petitioner has failed to establish that reasonable jurists could debate whether the Court was correct in its denial of his motions for relief from judgment and request for documents. Id. Petitioner's request for a certificate of appealability therefore is DENIED.

IT IS SO ORDERED.