Opinion
96 Civ. 9308 (LMM).
October 18, 2005
MEMORANDUM AND ORDER
In a Memorandum and Order dated May 16, 2005 ("May 2005 Order"), the Court denied a motion by petitioner for an order pursuant to Fed.R.Civ.P. 60(b)(6) vacating a judgment of dismissal of this habeas proceeding entered on June 18, 1997. Petitioner appealed that June 1997 dismissal, and the Court of Appeals affirmed in an unpublished summary order filed on March 30, 1998. The Rule 60(b)(6) motion followed.
The Memorandum and Order, through a transcription error, bears the erroneous date May 16, 2004. May 16, 2005 is the correct date.
Petitioner filed a notice of appeal from the May 2005 Order, which notice is dated June 16, 2005. Apparently at the suggestion of the Clerk's Pro Se Office, by reason of some question as to whether the notice of appeal was timely filed, petitioner has moved for an order either accepting the notice of appeal as timely, or extending his time to file a notice of appeal. Respondent (represented by the New York County District Attorney's Office) has not responded to the motion.
A notice of appeal in a civil action must (with exceptions not relevant here) be "filed with the district clerk within 30 days after the judgment or order appealed from is entered." Fed.R.App.P. 4(a)(1)(A). In addition:
If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution's internal mail system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.Id. 4(c)(1).
The difficulty giving rise to petitioner's motion appears to arise from the fact that the postmark on the envelope in which the notice of appeal was mailed to the Clerk is not fully legible, so that what can be deciphered is limited to "June 05."
The notice of appeal is dated June 16, 2005, within 30 days after the May 2005 Order was entered on the docket on May 17, 2005; the envelope containing the notice of appeal is stamped as having been received by the Pro Se Office on June 29, 2005; in an affirmation in support of the motion, in substantial compliance with 28 U.S.C. § 1746, petitioner states that he served and filed the notice by mail on June 16, 2005. Defendant's filing of the notice of appeal is accordingly timely under the first sentence of Fed.R.App.P. 4(c), and the Clerk is directed to accept it for filing.
The Court notes that the ultimate arbiter of the timeliness of the notice of appeal is the Court of Appeals.
SO ORDERED.