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Sullen v. Steward

United States District Court, Southern District of Alabama, Southern Division

May 4, 2015

WILLIE ARTHUR SULLEN, Petitioner,
v.
CYNTHIA STEWARD, Respondent.

ORDER

CALLIE V. S. GRANADE, UNITED STATES DISTRICT JUDGE.

The United States Court of Appeals for the Eleventh Circuit sua sponte remanded this case “for a determination as to whether [Willie Arthur Sullen] is eligible for relief” under Federal Rule of Appellate Procedure 4(a)(6). (Doc. 29).

I. GROUND

A jury convicted the Petitioner (“Sullen”) of first-degree domestic violence on May 26, 2010, and the Mobile County Circuit Court sentenced him to serve twenty-five years in the state penitentiary. (Doc. 1, p. 2). On appeal, the Alabama Court of Criminal Appeals affirmed the conviction (Doc. 10, Exhibit A). Sullen sought neither a rehearing in the Alabama Court of Criminal Appeals nor certiorari in the Alabama Supreme Court (see Doc. 1, p. 3). The certificate of final judgment was entered on March 9, 2011 (Doc. 10, Exhibit C).

Sullen filed a Rule 32 petition on August 25, 2011 in the Mobile County Circuit Court (see Doc. 1, p. 4). On July 1, 2012, Sullen filed a petition for writ of mandamus with the Alabama Court of Criminal Appeals, seeking to force the circuit court to rule on his Rule 32 petition (Doc. 10, Exhibit E; see also Doc. 10, p. 3). On September 7, 2012, the appellate court denied the mandamus petition, finding that the circuit court judge denied Sullen’s request for in forma pauperis status on September 26, 2011, and that because Petitioner had never paid a filing fee, the Rule 32 petition had not been properly filed (Doc. 10, Exhibit F). On November 28, 2012, Sullen filed a second petition for writ of mandamus, seeking again, to have the lower court to rule on his Rule 32 (Doc. 10, Exhibits D, G). On February 7, 2013, the Alabama Court of Criminal Appeals again denied the petition for the same reasons it denied the first petition (see Doc. 10, Exhibit H). On March 3, 2014, Sullen’s petition for certiorari was struck by the Alabama Supreme Court for his failure to comply with Court rules (Doc. 10, Exhibit I).

Petitioner filed a complaint with this Court on March 5, 2014 raising the following claims: (1) His attorney rendered ineffective assistance; and (2) the State Courts improperly dismissed his Rule 32 petition after failing to rule on it for more than two years. (Doc. 1).

Respondent answered the petition, arguing that it should be dismissed as it was not filed within the one-year statute of limitations period (Doc. 10, pp. 5-8). Respondent refers to provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (hereinafter AEDPA) that amended, in pertinent part, 28 U.S.C. § 2244. On July 10, 2014, the Magistrate Judge entered a report and recommendation with the finding that the Petitioner’s claims were time-barred and due to be dismissed. (Doc. 13).

On August 8, 2014, this Court adopted the Magistrate Judge’s report and recommendation and entered a judgment denying and dismissing the petitioner’s habeas petition. (Doc. 16). On December 30, 2014, the petitioner sent a letter to the court requesting information concerning his case. (Doc. 19).

On April 17, 2015, the Eleventh Circuit Court of Appeals sua sponte entered a remand order stating that Petitioner’s letter requesting information concerning the case must be liberally construed as a motion to reopen the appeal period.

ANALYSIS

Petitioner may not have received actual notice of the district court's August 8, 2014 order denying his habeas petition and did not appeal the order within the 30–day time period set forth in Rule 4(a). Under Rule 4(a), the petitioner had 30 days from August 8, 2014, the date Judgment was entered, or until September 6, 2014, to timely file a notice of appeal. Vencor Hospitals, Inc. v. Standard Life & Acc. Ins. Co., 279 F.3d 1306, 1309 (11th Cir. 2002)(Pro se litigants, like counseled parties, must adhere to time requirements); see also Garvey v. Vaughn, 993 F.2d 776, 780 (11th Cir. 1993). Ordinarily, a habeas petitioner's failure to timely file a notice of appeal is “fatal” to his appeal, “because the timely filing of a notice of appeal is mandatory and jurisdictional.” Hollins v. Dep't of Corr., 191 F.3d 1324, 1326 (11th Cir. 1999).

Prior to 1991, neither the Federal Rules of Civil Procedure nor the Federal Rules of Appellate Procedure contained provisions permitting an extension of the time limit for filing an appeal when a party entitled to receive notice of the entry of a judgment or order fails to receive such notice. Vencor, 279 at 1309. In 1991, however, Federal Rule of Appellate Procedure 4(a) was amended to include subsection (6), which states:

(6) Reopening the Time to File an Appeal. 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 to ...

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