United States District Court, M.D. Alabama
OPINION AND ORDER
Myron
H. Thompson United States District Judge
This
case is before the court on petitioner Samuel Allan
McCormick's motion to file an out-of-time appeal.
On
March 25, 2019, this court entered an order denying
McCormick's motion for relief from final judgment under
Fed.R.Civ.P. 60(b)(4), by which he had sought relief from
this court's November 2016 judgment denying his 28 U.S.C.
§ 2254 habeas petition without an evidentiary hearing.
McCormick did not appeal from this court's March 25
order.
On August 23, 2019, McCormick filed the pending motion to
file an out-of-time appeal pursuant to Rule 4(a)(6) of the
Federal Rules of Appellate Procedure.[*] As grounds for his motion, he
states that he did not receive a copy of the court's
March 25 order and that it was not until July 2, through an
order of the Eleventh Circuit Court of Appeals denying a
petition for writ of mandamus he filed, that he first learned
this court had denied his Rule 60(b)(4) motion. See
Motion to File an Out-of-Time Appeal (doc. no. 109) at 2.
McCormick requests that this court grant his August 23 motion
and reopen the time to file an appeal. According to
McCormick: “No party will be prejudiced by the
allowance of this out-of-time appeal. However, refusal to
grant this motion will prejudice McCormick.”
Id.
Rule
4(a)(1) of the Federal Rules of Appellate Procedure provides
that a party who wants to appeal a judgment or order entered
in a civil case must file a notice of appeal with the clerk
of the district court within 30 days after entry of the
judgment or order appealed from. Rule 4(a)(6) of the Federal
Rules of Appellate Procedure authorizes the district court to
reopen the time for filing an appeal upon a motion, where 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 180 days after the judgment or
order is entered or within 14 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.”
Fed. R. App. P. 4(a)(6).
Considering
McCormick's August 23 motion in light of the requirements
of Rule 4(a)(6), this court finds the factual assertions in
it are credible and therefore finds he did not receive,
within 21 days after entry, notice of this court's March
25 order denying his Rule 60(b)(4) motion. See Fed.
R. App. P. 4(a)(6)(A). Further, the court is satisfied, and
therefore finds, that no party would be prejudiced by the
reopening of the time for him to file an appeal from the
March 25 order. See Fed. R. App. P. 4(a)(6)(C).
Rule
4(a)(6)(B) provides an outer time limit of 180 days, after
entry of the judgment or order sought to be appealed, for
moving to reopen the time to appeal. Under this outer time
limit, McCormick would have until September 21, 2019, to move
to reopen the time to appeal from this court's March 25
order. He filed this motion on August 23, 2019--well within
the 180-day limit.
Under
Rule 4(a)(6)(B), McCormick must also have moved to reopen the
time to appeal within 14 days after he received notice, under
Federal Rule of Civil Procedure 77(d), of the entry of this
court's March 25 order, if that time is earlier than 180
days after entry of that order. McCormick states that he
learned of this court's March 25 order denying his Rule
60(b)(4) motion through statements by the Eleventh Circuit in
its July 2 mandamus order. See Motion to File an
Out-of-Time Appeal (doc. no. 109) at 2. Thus, it could be
argued that McCormick had actual notice of this court's
March 25 order by way of those statements by the Eleventh
Circuit. McCormick filed his motion to reopen the time to
appeal on August 23--more than 14 days after entry of the
Eleventh Circuit's July 2 order. However, the 14-day
limit in Rule 4(a)(6)(B) applies where “the moving
party receives notice under Federal Rule of
Civil Procedure 77(d) of the entry.” (Emphasis
added.) And Rule 77(d) provides that notice of entry of the
judgment or order is to be served by the clerk of the
district court, or by a party as specified in Fed.R.Civ.P.
5(b). See Fed. R. Civ. P. 77(d). Because any notice
of this court's March 25 order that may have been
contained in the Eleventh Circuit's July 2 order was not
served by the clerk of the district court, or by a party as
specified in Rule 5(b), such notice was not notice for
purposes of Rule 77(d). Because McCormick has received no
notice under Rule 77(d), the 14-day limit in Rule 4(a)(6)(B)
does not bar his August 23 motion to reopen the time to
appeal. And because his August 23 motion was filed within 180
days after the entry of this court's March 25 order, the
August 23 motion is timely under Rule 4(a)(6)(B).
Accordingly,
because McCormick's motion to reopen the time to appeal
satisfies all the requirements of Rule 4(a)(6), it is ORDERED
that petitioner Samuel Allan McCormick's motion to file
an out-of-time appeal (doc. no. 109) is granted, and thus the
time for petitioner McCormick to file an appeal is reopened.
Petitioner
McCormick is advised that any notice of appeal of this
court's order of March 25, 2019, denying his Rule
60(b)(4) motion, must be filed within 14 days after entry of
this order, ...