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Washington v. United States

December 22, 2006

STEPHEN WASHINGTON, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Judge Graham

Magistrate Judge King

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 ...


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