Eugene Fischer v. J. Gilbert

Filing 1

Opinion

Download PDF
In the United States Court of Appeals For the Seventh Circuit N o. 09-1099 IN RE: EUGEN E A. FISCH ER, Petitioner. ___________________ Petition for Writ of Mand am us from the Southern District of Illinois. N o. 4:87-cr-40070-JPG-4--J. Phil Gilbert, Judge. ___________________ SUBMITTED JAN UARY 15, 2009--DECIDED JAN UARY 23, 2009* ___________________ Before RIPPLE, MAN ION and ROVN ER, Circuit Judges. * This op inion is being released initially in typescrip t form . N o. 09-1099 Page 2 RIPPLE, Circuit Judge. Eugene Fischer has filed a p etition for w rit of mand am us asking this court to allow him to file a late notice of ap peal from the d istrict court's ord er granting the Governm ent's m otion to renew a m onetary forfeiture jud gm ent against him . The d istrict court entered its ord er granting the Governm ent's m otion to renew the forfeiture jud gm ent on N ovem ber 5, 2008. In his papers, Mr. Fischer says that he d id not receive a cop y of the N ovember 5 ord er and only learned that an ord er had been issued w hen he received a copy of the d istrict court's d ocket sheet in p rison. H e d oes not say exactly w hen he received the d ocket sheet, but ind icates that it w as just before m ailing his petition on January 9, 2009. Mr. Fischer w as required to file a notice of appeal w ith the d istrict court clerk w ithin 30 d ays after the ord er appealed from w as entered , see Fed . R. App. P. 4(a)(1)(A), bu t was unable to d o so because he d id not learn of the ord er until the 30-d ay time period had exp ired . As a result, Mr. Fischer now asks this court to allow him to file a notice of appeal from the N ovem ber 5 ord er. We d eny Mr. Fischer's petition because m and am us is not the p roper m ethod for obtaining perm ission to file a late notice of ap peal. We issue this opinion to p rovid e him w ith guid ance as to the proper steps to take. Fed eral Rule of Appellate Procedure 4(a)(6) explains the proper m ethod for requesting leave to file a late notice of appeal w hen a party d oes not receive notice of entry of an ord er or jud gm ent. Rule 4(a)(6) provid es as follow s: The d istrict cou rt m ay reopen the tim e to file an ap p eal for a period of 14 d ays after the d ate w hen its ord er to reopen is entered , but only if all the follow ing cond itions are satisfied : (A) the court find s that the m oving party d id not receive notice u nd er Fed eral Ru le of Appellate Proced ure 77(d ) of the entry of the jud gm ent or ord er sought to be appealed w ithin 21 d ays after entry; (B) the m otion is filed w ithin 180 d ays after the jud gm ent or ord er is entered or w ithin 7 d ays after the N o. 09-1099 Page 3 m oving p arty receives notice und er Fed eral Rule of Appellate Proced ure 77(d ) of the entry, w hichever is earlier; and (C) the court find s that no party w ould be prejud iced . See Firmansjah v. A shcroft, 347 F.3d 625, 626 (7th Cir. 2003). Rule 4(a)(6) specifically gives the authority to reop en the tim e for filing an appeal to the d istrict court; appellate courts cannot extend the tim e to file a notice of appeal. See Bhd. of Ry. Carmen Div. of Transp. Communications Intern. Union v. Chicago & N orth W estern Transp. Co., 964 F.2d 684, 686 n.2 (7th Cir. 1992).1 Becau se Mr. Fischer has requested relief from the w rong court, w e must d eny his p etition for a w rit of m and am u s. Mr. Fischer shou ld file a tim ely m otion to reopen the tim e for filing a notice of ap peal w ith the d istrict cou rt. The m otion should explain the circum stances by w hich Mr. Fischer learned that the d istrict court entered the ord er granting the Governm ent's m otion to renew the forfeitu re jud gm ent and should explain w hether any party w ould be prejud iced by reopening the tim e to appeal. See Fed . R. App. P. 4(a)(6). PETITION for WRIT of MAN DAMUS DEN IED A review of the d istrict cou rt d ocket ind icates that Mr. Fischer has not filed a m otion to reop en the tim e for filing a notice of app eal in that court. If Mr. Fischer's representations to this court are accu rate, he d id not receive notice of the entry of the ord er from the d istrict court or the op p osing party, as requ ired by Fed eral Ru le of Civil Proced u re 77(d ), w ithin 21 d ays after entry of th e ord er, and he learned of the ord er's entry by requ esting the d ocket sheet, and not from the court or the op p osing party, so the seven-d ay d ead line in Ru le 4(a)(6)(B) w ould not ap p ly. As a resu lt, Mr. Fisch er w ou ld have 180 d ays from the d ate the ord er w as entered , N ovem ber 5, 2008, to file his m otion w ith the d istrict court. 1

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?