Opinion
99 CV 1881 (KMW), 98 CV 7065 (KMW), 95 CR 916-1 (kmw)
October 25, 2002
OPINION
On August 17, 2002, the Court ordered petitioner to submit, by September 23, 2002, an affirmation to this Court identifying the date on which he handed his notice of appeal to the prison officials for mailing, and explaining why his notice of appeal was not filed within the 10-day period provided in Rule 4(b). In addition, this Court ordered petitioner to file a separate affirmation explaining why his § 2255 motion was filed six months after the statute of limitations expired.
To date, the Court has received no affirmation or other response from petitioner.
Respondent's failure to submit an affirmation (1) identifying the date on which his notice of appeal was received by prison officials, and (2) explaining why he failed to file his notice of appeal within the 10-day period allowed by Rule 4(b), makes it impossible to determine whether petitioner's notice of appeal was filed within the 30-day grace period, and whether it should be construed as a request for an extension of time. It also makes it impossible to determine that petitioner has demonstrated "excusable neglect" for his failure to file a timely notice of appeal:
Petitioner has also failed to show cause by affirmation why the statute of limitations should not bar his § 2255 petition.
For these reasons, the court finds that petitioner's notice of appeal was not timely. The Court also finds that petitioner's § 2255 petition is barred by the statute of limitations.