Eugene Fischer v. J. Gilbert
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
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.
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