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Gibson v. Wolfe

March 5, 2007

STEVEN GIBSON, PETITIONER,
v.
JEFFREY WOLFE, WARDEN, MAGISTRATE JUDGE KING RESPONDENT.



The opinion of the court was delivered by: James L. Graham United States District Judge

OPINION AND ORDER

On May 15, 2006, final judgment was entered dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This matter is before the Court on petitioner's December 14, 2006, motion to reopen the time to file an appeal, and his February 7, 2007, notice of appeal, which the Court construes as a request for a certificate of appealablity. For the reasons that follow, petitioner's requests, Doc. Nos. 49 and 50, are DENIED.

The judgment dismissing petitioner's §2254 petition was entered on May 15, 2006. Doc. No. 43. Petitioner filed his notice of appeal almost nine (9) months later, on February 7, 2007. Pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A), a timely notice of appeal must be filed within thirty days after the judgment or order being appealed is entered. 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., et al., v. Henderson III, et al., 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).

However, on December 14, 2006, petitioner filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b), requesting that the Court reopen the time to file an appeal because he did not receive notice of the final judgment dismissing his habeas corpus petition until December 5, 2006. See Motion for Relief from Judgment, Doc. No. 49. Pursuant to Federal Rule of Appellate Procedure 4(a)(6),

[t]he 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.

Id.

The docket indicates that a copy of the final judgment of dismissal was timely mailed to petitioner at his current address. See Doc. Nos. 42, 43. Additionally, on September 15, 2006, the Court denied petitioner's motions to supplement the record, and expressly noted that final judgment of dismissal had been entered on May 15, 2006. See Doc. No. 46. The docket reflects that a copy of this order was also timely mailed to petitioner at his current address. Thus, petitioner had yet additional notice of the entry of the final judgment of dismissal. See id. Even accepting as true petitioner's allegation that he was not notified of the final judgment of dismissing his habeas corpus petition until December 5, 2006, his request to reopen the time to file the appeal is nonetheless untimely. Petitioner failed to file his request until December 14, 2006, 213 days after final judgment was entered, well beyond the 180 day period established under Federal Rule of Appellate Procedure 4(a)(6)(B).

Federal Rule of Appellate Procedure 4(a)(5) establishes another procedure for extending the time for filing a notice of appeal:

(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 ...


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