Opinion
No. 00 Civ. 8927 (WK)
December 17, 2002
Corneal Cordon, #97-A-5114, Green Haven Correctional Facility, Stormville, NY, For Petitioner: (pro se).
Nicola N. Grey, Esq., Assistant Attorney General, Office of the Attorney General of the State of New York, New York, NY, For Respondent.
ORDER
On July 9, 2001, we issued a Memorandum and Order denying Petitioner Corneal Cordon's pro se petition for a writ of habeas corpus. See Cordon v. Greiner, No. 00 Civ. 8927 (S.D.N.Y. July 11, 2001) (unpublished decision). That Memorandum and Order was filed by the Clerk of the Court on July 11, 2001, and thereafter entered on the docket on July 12, 2001. (See Docket No. 9).
The Second Circuit has held in no uncertain terms that a separate judgment must be entered where the district court denies a habeas petition predicated on 28 U.S.C. § 2254. Kaplan v. Bombard (2d Cir. 1978) 573 F.2d 708, 711 n. 2. Cf. Axel Johnson Inc. v. Arthur Andersen Co. (2d Cir. 1993) ¶ F.3d 78, 84 (holding that a judgment must be issued and entered separately from any memorandum decision dismissing a civil proceeding before a party's time to appeal begins to run within the meaning of Rule 4 of the Federal Rules of Appellate Procedure). Here, the Clerk filed the requisite Judgment on July 13, 2001. (See Docket No. 10). That Judgment was entered on the docket on July 16, 2001 and the notation next to that docket entry indicates that copies were mailed to the parties. Id. We are informed by the Clerk's office that these notations indicate that a copy of the Judgment was mailed to the Petitioner from the Clerk's office to his last known address (namely, the Green Haven Correctional Facility) on the same date that the Judgment was entered on the docket (i.e. on July 16, 2001). There is no indication that the Judgment was returned to the Clerk's office as undeliverable.
"In a habeas corpus proceeding . . ., the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held." 28 U.S.C. § 2253(a). A party has 30 days after a judgment is entered to appeal from a decision in a § 2254 habeas corpus proceeding. See Mizell v. Attorney General of the State of New York (2d Cir. 1978) 586 F.2d 942, 944 n. 2, (citing Federal Rule of Appellate Procedure 4(a)), cert. denied (1979) 440 U.S. 967. Since the Judgment in this proceeding was entered on the docket on July 16, 2001, the Petitioner's time to file a notice of appeal expired on August 15, 2001. He did not file a notice of appeal on or before that date and thereby failed to comply with the deadline enumerated in Federal Rule of Appellate Procedure 4(a).
Although the Clerk of the Court mailed the Petitioner a copy of the Judgment in accordance with Federal Rule of Civil Procedure 77(d), it would be inappropriate for the Court to add three calendar days pursuant to Rule 6(e) to the prescribed deadline within which the Petitioner's notice of appeal should have been filed. "The 30-day requirement of Fed.R.App.P. 4(a) is not affected by Fed.R.Civ.P. 6(e); since the appeal time starts from the entry of the judgment and not from service of the notice, Rule 6(e) does not apply so as to enlarge the time allowed for filing the notice of appeal." Lashley v. Ford Motor. Co. (5th Cir. 1975) 518 F.2d 749, 750. See also Reynolds v. Hunt Oil Co. (5th Cir. 1981) 643 F.2d 1042, 1043; M-F-G Corp. v. Emra Corp. (N.D.Ill. Sept. 12, 1986) No. 84 C 10846, 1986 WL 10354, at *1. Cf. Ludgood v. Apex Marine Corp. Ship Management (5th Cir. 2002) 311 F.3d 364, 367 ("[T]he additional three calendar days after service by mail as permitted by Fed.R.App.P. 26(c) is unavailable because the time for filing notice of appeal commences to run from the entry of judgment and not 'after a paper is served on that party' as provided in Rule 26(c). This court held the three-day grace period for mailing to be inapplicable for extending the thirty days allowed for notices of appeal in Reynolds v. Hunt Oil Co., 643 F.2d 1042 (5th Cir. 1981)"). Cf. also Savage v. Cache Valley Dairy Ass'n (10th Cir. 1984) 737 F.2d 887, 888; Sofarelli Associates, Inc. (Fed. Cir. 1983) 716 F.2d 1395, 1396; Wyzik v. Employee Benefit Plan of Crane Co. (1st Cir. 1981) 663 F.2d 348, 349.
However, in a letter dated September 7, 2001 (and sent out from the Green Haven Correctional Facility on September 10, 2001), the Petitioner wrote to this Court and indicated that he had not received a copy of our July 9, 2001 order until August 22, 2001. There is only one July 9th order in this proceeding: the Memorandum and Order we issued on July 9, 2001 denying his petition. In other words, this letter indicated that the Petitioner had not received our Memorandum and Order until after his time to file a notice of appeal had already expired. In light of this consideration, he suggested that it "was not the fault of the petitioner that he is late in submitting his notice of appeal" with respect to our denial of his petition and argued that he should therefore "not be precluded from going forward" with an appeal therefrom. (See September 7, 2001 Letter of Corneal Cordon at 1). Along with this letter, the Petitioner also enclosed a completed, albeit late, notice of appeal as well as a copy of the envelope in which he received our Memorandum and Order denying his petition. In his notice of appeal, the Petitioner similarly indicated that he had not received a copy of that July 9, 2001 Memorandum and Order until August 22, 2001.
Although the Petitioner has submitted information with respect to his receipt of the Memorandum and Order, he has offered no information as of yet about his receipt of the Judgment. Accordingly, the Petitioner is hereby directed to submit a sworn affidavit discussing his receipt of the Judgment. In that affidavit, the Petitioner should explain whether he ever received a copy of the Judgment. If the Petitioner indicates that he did receive a copy of the Judgment, then he should also (a) inform us of the date on which he received that copy and (b) describe, to the extent he can recall, the factual circumstances of his receipt of that Judgment. In order to ensure that the Petitioner is not mistaken about which document we are referring to by the term "Judgment," we will enclose a copy of that Judgment when we send the Petitioner a copy of this order.
In his affidavit, the Petitioner should also provide particular information about the notice of appeal which he mailed to the Clerk of the Court. Although the Assistant Attorney General representing Respondent Charles Greiner has indicated that her office received a notice of appeal dated "August 31, 2001," the Court received what appears to be an original notice of appeal in which the "August 31, 2001" date was crossed out and replaced with "September 7, 2001." This latter date (i.e. September 7, 2001) appears consistent with the date on the letter sent by the Petitioner to this Court along with the notice of appeal. Given this slight discrepancy, the Petitioner should indicate in his affidavit: (a) when he gave his notice of appeal to the prison authorities so that the notice could be mailed to the Court and (b) why the date on the notice sent to the Attorney General's office differs from the notice sent to the Court. In order to ensure that the Petitioner has an opportunity to review the two notices to which we are referring, we will enclose copies of both the notice of appeal received by the Attorney General's office (dated August 31, 2001) as well as the notice received by the Court when we send him a copy of this order.
Along with his affidavit, the Petitioner should, to the extent possible, submit any documentation he can to support his statements (for example, if he has access to such documents, it would be helpful if he could submit any of the following: (a) a copy of the envelope in which he might have received the Judgment; (b) a copy of any log entries which show when he might have (i) received the Judgment, (ii) delivered the notice of appeal to prison authorities or (iii) mailed out that notice to the Court; or (c) the very copy of the Judgment which he may have received). The Petitioner should submit his affidavit and any accompanying documents on or before January 17, 2003. If the Petitioner needs an extension of time to comply with this order, he should send us a written request for such an extension and inform us of his reasons for asking for the extension as well as of how much additional time he may need to comply with our order.
SO ORDERED.