Opinion
Criminal Action No. 92-20063-02-GTV.
May 1, 2000.
James A. Sevart, Jr., defendant, pro se.
Lealon Muldrow, defendant, pro se.
John C. Donham, Olathe, KS, for Lealon Muldrow, defendant.
MEMORANDUM AND ORDER
The Tenth Circuit Court of Appeals has remanded the above-captioned case to this court for a determination of whether the time period for filing a notice of appeal should be reopened for fourteen days pursuant to Fed.R.App.P. 4(a)(6). The defendant, Lealon Muldrow, had appealed my order entered June 17, 1998 (Doc. 142) which denied his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. The court of appeals found Mr. Muldrow's appeal to be jurisdictionally defective because he had not met the sixty-day deadline for filing his notice of appeal as required by Fed.R.App.P. 4(a)(1)(B). His notice of appeal was found by the court of appeals to have been filed October 22, 1999, when the deadline for filing a timely notice of appeal had expired August 17, 1998. Consequently, the appeal was dismissed for lack of jurisdiction, but the case is remanded for this court to determine if the time to file an appeal should be reopened.
In its order (Doc. 158), the court of appeals liberally construed defendant's notice of appeal so that it may be considered as a motion under Fed.R.App.P. 4(a)(6). I will consider the motion as if it had been filed in the district court. For the reasons stated in this Memorandum and Order, the motion is denied.
According to the order of the court of appeals, the defendant stated in his notice of appeal that he did not know this court had entered an order denying his § 2255 motion until October 13, 1999, when he called the clerk's office, and that he received a copy of the order on October 20, 1999. I will accept these statements as true. He then filed his notice of appeal of the order on October 22, 1999.
Fed.R.App.P. 4(a)(6) extends until 180 days after the entry of judgment the time within which a district court may permit late filing of a notice of appeal under certain circumstances. Rule 4(a)(6) provides:
The district court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of the entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.
As the advisory committee notes that accompanied the 1991 amendment to Rule 4(a) point out, "[t]his provision establishes an outer limit of 180 days for a party who fails to receive timely notice of entry of a judgment to seek additional time to appeal." The 2nd Circuit, inAvolio v. County of Suffolk, 29 F.3d 50, 52 (2nd Cir. 1994), set out the four requirements that must be met in order to obtain authorization for an extension of the time. They are (1) that the movant was entitled to receive notice of the entry of the judgment; (2) that the movant did not receive such notice within twenty-one days of its entry; (3) that no party would be prejudiced by the extension; and (4) that the movant filed the motion within 180 days of entry of the judgment or within seven days of receipt of such notice, whichever is earlier. The court went on to conclude that the notice contemplated by the rule is written notice. Id., at 53.
In determining whether Mr. Muldrow is entitled to a reopening of the time to appeal, the four-part test of Avolio will be applied. There can be no dispute that he was entitled to notice of the entry of this court's order of June 17, 1998. The first prong of the test is satisfied. As stated previously, I have accepted as true defendant's statement that he did not receive notice, and the second part of the test is satisfied. As to the third prong — the prejudice test, I do not perceive prejudice to the government if the appeal time is reopened.
The fourth part of the test under Fed.R.App.P. 4(a)(6) is timeliness, and it is here that the defendant's motion falters. As already noted, the order from which appeal is sought was entered June 17, 1998, but the notice of appeal, now construed as a motion under the rule, was not filed until October 22, 1999. The motion must be filed either within 180 days of entry of the judgment or within seven days of receipt of notice. Here, the 180-day period following the receipt of the notice by Mr. Muldrow is the relevant time constraint, because it ended on December 14, 1998, while the seven-day period following receipt of the notice ended on November 2, 1999, when the intervening Saturday and Sunday are excluded pursuant to Fed.R.Civ.P. 6(a). Thus the 180 days was the earliest. Cf. Bourgal v. Robco Contracting Enterprises, Ltd., 17 F. Supp.2d 129, 133 (E.D.N Y 1998) (applying the seven day period because it was earlier). See also, Sattan v. Eugene, 1999 WL 55721 (E.D. N.Y. 1999) (denying request to reopen time to file appeal where motion under Fed.R.App.P. 4(a)(6) was filed 183 days after entry of judgment).
I conclude that defendant's motion to reopen the time for appeal was not filed within 180 days of the order from which he seeks to appeal. Consequently, he has not met the requirements of Fed.R.App.P. 4(a)(6).
IT IS, THEREFORE, BY THE COURT ORDERED, that defendant's motion that the time period for filing a notice of appeal be reopened for fourteen days pursuant to Fed.R.App.P. 4(a)(6) is denied.
The clerk is directed to mail copies of this order to counsel of record and to the defendant Lealon Muldrow.
BY THE COURT IT IS SO ORDERED.
Dated at Kansas City, Kansas, May 1, 2000.