Abbott v. USA (INMATE 3)

Filing 108

ORDER construing 5/2/05 pleading as a motion to extend time to file objections to 3/15/05 recommendation; granting motion to extend time to and including 7/1/05 to file objections to recommendation; VACATING 4/6/05 Order and Final Judgment; referring case back to the Mag. Judge for further proceedings; copy of 3/15/05 recommendation furnished to plaintiff as directed; Objections to R&R due by 7/1/2005. Signed by Judge Myron H. Thompson on 6/13/05. (ajr, )

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Abbott v. USA (INMATE 3) Doc. 108 Case 1:02-cv-00076-MHT-SRW Document 108 Filed 06/13/2005 Page 1 of 2 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE M IDDLE DISTRICT OF ALABAM A SOUT HERN DIVISION UNIT ED STATES OF AM ERICA v. WILLIAM C. ABBOTT ) ) ) ) ) CIVIL ACTION NO. 1:02cv76-T WO O RDER On M arch 15, 2005 (Doc. 102.), a Report and Recommendat i o n was entered which recommended that the 28 U.S.C. 2255 motion filed by movant William C. A b bot t be denied, as the claims therein entit l e him t o no relief. There being no objections filed to the Recommendat ion, an order adopting the Recommendation was entered on April 6, 2005 (Doc. 103), and final judgment was entered the same day (Doc. 104). On M ay 2, 2005 (Doc. 105) , Abbott filed a p l e a d i n g styled as an "Objection to Order and Final Judgment and M ot ion for Reconsideration."* In this motion, Abbott states t hat he was transferred to the United St a t es Penitentiary in Beaumont, Texas, on or around February 9, 2005. He asserts that, consequently, he did not receive not i c e of this court's Alt hough Abbott's motion is date stamped " r e c e i v e d" on M ay 9, 2005, the motion was signed by Abbott on M ay 2, 2005. A pro se inmate's motion is deemed filed on t he date it is delivered to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 271-72 (1988); Adams v. United States, 173 F.3d 1339, 1340-41 (11th Cir. 1999); Garvey v. Vaughn, 993 F.2d 776, 780 (11 th Cir. 1993). "Absent evidence to the contrary in the form of prison logs or ot her records, [this court] must assume that [Abbott's motion] was delivered to prison a u t h o r it ies the day [he] signed it...." Washington v. United States, 243 F.3d 1299, 1301 (11 t h Cir. 2001). In light of the foregoing and without any contradictory evidence, t h e court assumes that M ay 2, 2005, should be considered the date of filing for Abbott's motion. * Case 1:02-cv-00076-MHT-SRW Document 108 Filed 06/13/2005 Page 2 of 2 denial of his 28 U.S.C. 2255 motion until April 28, 2005. Abbott further asserts that, to t his date, he has not received a copy of the Recommendation adopted by the court's order of April 6, 2005. Accordingly, Abbott request s that this court vacate its order and final judgment entered on April 6, 2005, and grant him an extension of time to file objections to t he Recommendation entered on M arch 15, 2005. T h e court construes Abbott's instant p leading (Doc. 105) to contain a "M ot ion for Extension of Time." In light of the foregoing, and for good cause, it is ORDERED that: 1. Abbot's Objection to Order and Final Judgment and M ot ion for Recons i d erat ion (Doc. 105) are sustained and granted. 2. The Order and Final Judgment entered on A p r i l 6, 2005 (Docs. 103 and 104), are VACAT ED; 3. Abbott's M ot ion for Extension of Time (Doc. 105) is GRANTED; 4. Abbott is GRANTED an extension of time from April 4, 2005, to and including July 1, 2005, to file his objections to the Recommendation entered on M arch 15, 2005; and 5. This case is REFERRED back to M agist rat e Judge Sus a n Rus s Walker for further p roceedings. In the interest of judicial economy, the CLERK is DIRECTED to provide Abbott with a copy of the Recommendation entered on M arch 15, 2005. DONE, this the 13th day of June, 2005. /s/ M y ron H. Thompson UNITED STATES DISTRICT JUDGE

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