Johnson v. Myers et al (INMATE 3)

Filing 40

OPINION AND ORDER: It is ORDERED that petitioner's Notice of Appeal (doc. no. 37 ) is treated as also a motion to reopen the time to file an appeal; that petitioner's motion to reopen the time to file an appeal (doc. no. 37 ) is granted; and that the court finds that petitioner's notice of appeal (doc. no. 37 ) was timely filed on 6/28/2017. Signed by Honorable Judge Myron H. Thompson on 7/11/2017. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

ALVIN JAMES JOHNSON,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
WALTER MYERS, et al.,
Respondents.

CIVIL ACTION NO.
2:14cv1127-MHT
(WO)

OPINION AND ORDER
On March 22, 2017, the court entered a judgment in
this habeas-corpus case denying petitioner Alvin James
Johnson’s

petition

time-barred.

See

for

writ

Judgment

of
(doc.

habeas
no.

corpus

36).

as

Under

Federal Rule of Appellate Procedure 4(a)(1)(A), Johnson
had until April 21, 2017, to file a notice of appeal.1

1. Rule
civil action
the district
judgment or
4(a)(1)(A).

4(a)(1)(A) requires that a litigant in a
file a notice of appeal with the clerk of
court within 30 days after entry of the
order appealed from.
Fed. R. App. P.

However, he did not file a notice of appeal until over
two months later, on June 28, 2017.2
In his pro se notice of appeal, Johnson reports
that,

due

to

the

mishandling

of

the

mail

by

the

mailroom clerk at Holman Correctional Facility, where
he is incarcerated, he did not receive notice of this
court’s judgment denying his habeas petition until June
26, 2017.

Notice of Appeal (doc. no. 37) at 1.

The

Eleventh Circuit Court of Appeals has held that, when a
pro se appellant submits a late notice of appeal and
contends that he did not receive timely notice of the
entry of the judgment from which he seeks to appeal,
the

court

motion

to

should
reopen

treat

the

the

appellant’s

time

to

file

notice

an

as

appeal

a
in

accordance with Rule 4(a)(6) of the Federal Rules of
Appellate

Procedure.

Sanders

v.

United

States,

113

F.3d 184, 187 (11th Cir. 1997). Accordingly, this court
2. For purposes of Rule 4(a)(1), Johnson’s notice
of appeal is deemed filed on the date he delivered it
to prison authorities for mailing, which Johnson’s
certificate of service (doc. no. 37 at 2) indicates was
June 28, 2017. See Houston v. Lack, 487 U.S. 266,
271-72 (1988).
2

construes Johnson’s notice of appeal also to contain a
motion under Rule 4(a)(6) to reopen the time to file an
appeal from this court’s judgment of March 22, 2017.
Rule 4(a)(6) allows the district court to reopen
the time for filing an appeal upon a motion “filed
within 180 days after the judgment or order is entered
or

within

14

days

after

the

moving

party

receives

notice ... of the entry, whichever is earlier.”
R. App. P. 4(a)(6)(B).

Fed.

The district court may grant

such a motion upon finding that (i) the moving party
did not receive timely notice of the judgment or order
sought

to

prejudiced.

be

appealed3

and

(ii)

no

party

would

be

Fed. R. App. P. 4(a)(6)(A) & (C).

Here, Johnson states he did not receive notice of
this court’s judgment denying his habeas petition until
June 26, 2017, and he represents that he filed what

3. Rule 4(a)(6)(A) provides that notice of the
judgment or order is deemed untimely when “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.”
3

this court has construed as his motion to reopen the
time to file an appeal on June 28, 2017.
After consideration of the record, the court makes
the following findings:
(1) Johnson first received notice of the court’s
March 22, 2017, judgment denying his habeas petition on
June 26, 2017; therefore, such notice of judgment was
not timely received by Johnson.

See Fed. R. App. P.

4(a)(6)(A).
(2) Because Johnson filed his motion to reopen the
time to file an appeal on June 28, 2017, such motion
was filed within 14 days after Johnson learned of this
court’s judgment denying his habeas petition and was
filed well within the outer time limit of 180 days
after entry of the court’s judgment.

See Fed. R. App.

P. 4(a)(6)(B).
(3)

No

party

will

be

unfairly

prejudiced

reopening the time for Johnson to file his appeal.
Fed. R. App. P. 4(a)(6)(C).
***

4

by
See

Accordingly,

for

the

foregoing

reasons,

it

is

ORDERED that petitioner’s notice of appeal (doc. no.
37) is treated as also a motion to reopen the time to
file an appeal; that petitioner’s motion to reopen the
time to file an appeal (doc. no. 37) is granted; and
that the court finds that petitioner’s notice of appeal
(doc. no. 37) was timely filed on June 28, 2017.
DONE, this the 11th day of July, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE