Opinion
CASE NO. 2:05-cv-160, CRIM. NO. 2:97-cr-99(4).
December 22, 2006
OPINION AND ORDER
On May 15, 2006, petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 was dismissed. Doc. No. 761. This matter is before the Court on petitioner's December 6, 2006, letter asserting that he did not receive notice of the dismissal of his § 2255 petition. Doc. No. 779. This Court construes petitioner's letter as a request to extend the time to file a notice of appeal pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure and as a notice of appeal. For the reasons that follow, petitioner's request is GRANTED; however, the Court DECLINES to issue a certificate of appealability.
Petitioner represents that he never received notice of dismissal of his § 2255 petition and he learned only "Tuesday afternoon" that his § 2255 petition had been dismissed. He does not indicate how he learned that his petition had been dismissed.
Pursuant to Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure, a notice of appeal must be filed within sixty days after the entry of the order being appealed where the United States or its officer or agency is a party. Further, "[a] timely notice of appeal `is both a mandatory and a jurisdictional prerequisite.'" United States v. Perry, 360 F.3d 519, 523 (6th Cir. 2004), quoting United States v. Christunas, 126 F.3d 765, 767 (6th Cir. 1997); see also Intera Corp. v. Henderson III, 428 F.3d 605, 611 (6th Cir. 2005); Peake v. First Nat'l Bank Trust, 717 F.2d 1016, 1018 (6th Cir. 1983); United States v. Means, 133 F.3d 444, 448 (6th Cir. 1998).
Rule 4(a)(5) of the Federal Rules of Appellate Procedure authorizes an extension of time in which to file a notice of appeal, as follows:
(A) The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.
(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 10 days after the date when the order granting the motion is entered, whichever is later.
Rule 4(a)(6) of the Federal Rules of Appellate Procedure authorizes the reopening of the time to file an appeal as follows:
The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:
(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;
(B) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.
The docket indicates that a copy of the order dismissing petitioner's § 2255 petition was mailed to petitioner at his current address. See Doc. No. 761. However, petitioner states that he never received notice of that dismissal and that he filed his motion to reopen the appeal promptly upon learning that his § 2255 petition had been dismissed. Further, the Court concludes that no party will be prejudiced by reopening the time to file the appeal. Therefore, petitioner's request to reopen the time to file an appeal is GRANTED.
The Court DECLINES, however, to issue a certificate of appealability. Petitioner objected only to the Magistrate Judge's recommendation that claim one be dismissed. He therefore has waived his right to appeal the dismissal of all other claims raised in his federal habeas corpus petition. See Doc. No. 759, 761. Fed.R.Civ.P. 72(a); see Thomas v. Arn, 474 U.S. 140, 145 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
Claim one was dismissed on the merits. When a claim has been denied on the merits, a certificate of appealability may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 120 S.Ct. 1595 (2000). To make a substantial showing of the denial of a constitutional right, a petitioner must show
that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "`adequate to deserve encouragement to proceed further.'" Barefoot, 463 U.S., at 893, and n. 4. . . .Id.
Petitioner asserts in claim one that he was denied the effective assistance of counsel because his attorney failed to move for a judgment of acquittal on count 23, which charged petitioner with possession with intent to distribute more than five grams of crack cocaine, and thereby failed to preserve the issue of insufficiency of evidence for appellate review. However, on direct appeal, although the United States Court of Appeals for the Sixth Circuit dismissed petitioner's insufficiency of the evidence claim as waived, the Court nonetheless "easily conclude[d]" that there was sufficient evidence to sustain petitioner's conviction on possession with intent to distribute more than five grams of crack cocaine. See United States v. Washington, 83 Fed.App. 43, unpublished, 2003 WL 22905303 (6th Cir. November 24, 2003). Petitioner has therefore failed to establish that reasonable jurists could debate whether claim one should have been resolved in a different manner.
In sum, and construing petitioner's letter, Doc. No. 779, as a request to reopen the time to file an appeal and a notice of appeal, such motion is GRANTED. However, the Court DECLINES to issue a certificate of appealability.
It is so ORDERED.