Opinion
CIVIL ACTION NO. 1:05cv91-MHT, (WO).
March 13, 2008
OPINION AND ORDER
On February 15, 2007, the United State Magistrate Judge entered a recommendation that the 28 U.S.C. § 2255 petition filed by petitioner Neauthor Robinson on February 3, 2005, be denied because his habeas claims entitled him to no relief. No objections were filed to the recommendation. An opinion and judgment adopting the recommendation and denying the § 2255 petition were entered by the district court on March 8, 2007. Robinson did not appeal from this judgment.
Almost a year later, on March 5, 2008, Robinson filed a pleading styled as a "Motion to File a Belated Appeal." In this motion, Robinson states that he had not been timely informed that his § 2255 petition had been denied, because the attorney who represented him in the proceedings had not registered to receive notice of electronic filings and, consequently, did not receive notice of this court's judgment denying the petition. Robinson does not state when he first learned of the judgment; however, he asserts that his failure to receive timely notice of the judgment — and, consequently, his failure to file a timely appeal — constitutes "extraordinary circumstances" justifying application of principles of equitable tolling in his case. He requests that this court grant the instant motion for leave to file a belated appeal.
Although Robinson's motion is date-stamped "received" on March 10, 2008, the court deems it, under the "mailbox rule," filed on the date he delivered it to prison authorities for mailing, presumptively, March 5, 2008, the day that he signed it. See Houston v. Lack, 487 U.S. 266, 271-72 (1988); Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001).
Generally, Fed.R.App.P. 4(a)(1)(B) requires that a notice of appeal in a 28 U.S.C. § 2255 proceeding must be filed within 60 days after entry of the judgment being appealed. Butcher v. United States, 368 F.3d 1290, 1293 n. 1 (11th Cir. 2004). "Although the district court clerk's office is obligated to serve parties with notice of judgments and orders, `[l]ack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4(a) of the Federal Rules of Appellate Procedure.' Fed.R.Civ.P. 77(d)." Vencor Hospitals, Inc. v. Standard Life and Acc. Ins. Co., 279 F.3d 1306, 1309 (11th Cir. 2002).
Fed.R.App.P. 4(a)(6) authorizes the district court to reopen the time for filing an appeal upon a motion "filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice of the entry, whichever is earlier." Fed.R.App.P. 4(a)(6) (emphasis added); see also 16A Charles A. Wright, Arthur R. Miller Edward H. Cooper, Federal Practice and Procedure § 3950.6, at 228 (3d ed. 19990 ("Rule 4(a)(6) provides the exclusive means for extending appeal time for failure to learn that judgment has been entered."); accord Vencor Hospitals, 279 F.3d at 1309-11.
Rule 4(a)(6) provides 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 motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice of the entry, whichever is earlier;
(B) the court finds that the moving party was entitled to notice of the entry of the judgment or order sought to be appealed but did not receive the notice from the district court or any party within 21 days after entry; and
(C) the court finds that no party would be prejudiced."
For purposes of this order, its is necessary to discusses only the time limit provided in subpart (A) of Rule 4(a)(6).
Rule 4(a)(6) establishes an outer time limit of 180 days after entry of judgment to file a motion to reopen the time for appeal.Vencor Hospitals, 279 F.3d at 1310; see also advisory committee's notes to 1991 amendment, Fed.R.App.P. 4. The seven-day period specified in Rule 4(a)(6) applies only where the moving party has received notice of the entry of judgment before expiration of the 180-day period in Rule 4(a)(6); the rule does not extend the time limit for filing a motion to reopen beyond that 180-day period.Vencor Hospitals, 279 F.3d at 1310. Further, "nothing within Rule 4(a)(6) indicates it is permissive or that its limitations may be waived for equitable reasons. The 180-day limitation . . . is specific and unequivocal." Clark v. Lavallie, 204 F.3d 1038, 1040 (10th Cir. 2000).
Because, "[u]nder the plain meaning of Rule 4(a)(6), district courts are authorized to reopen the time for filing an appeal based on lack of notice solely within 180 days of the judgment or order," Vencor Hospitals, 279 F.3d at 1310, and because Robinson's motion for leave to file a belated appeal was filed well after expiration of the 180-day period after entry of the judgment denying his § 2255 petition, his motion is untimely under Rule 4(a)(6). See United States v. Hughes, 432 F.Supp.2d 1250, 1251 (M.D. Ala. 2006) (Thompson, J.) (denying, as untimely, prisoner's motion to reopen time for appeal where motion was filed three years after final judgment denying § 2255 habeas relief).
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In light of the foregoing, it is ORDERED that petitioner Neauthor Robinson's motion to file a belated appeal (Doc. no. 11) is denied.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST 1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 69 S.Ct. 1221 1225-26 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4 Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1 983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , , , (1949); , , (11th Cir. 1989); , , , , , (1964). : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).