McCormick v. Gordy et al (INMATE 3)
Filing
110
OPINION AND ORDER: it is ORDERED that petitioner Samuel Allan McCormick's 109 motion to file an out-of-time appeal is granted, and thus the time for petitioner McCormick to file an appeal is reopened, as further set out in order. Signed by Honorable Judge Myron H. Thompson on 9/3/2019. (furn: Appeal Clerk) (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
SAMUEL ALLAN McCORMICK,
)
)
Petitioner,
)
)
v.
)
)
CHRISTOPHER GORDY, Warden, )
Limestone Correctional
)
Facility, and LUTHER
)
STRANGE, Attorney General )
for the State of Alabama, )
)
Respondents.
)
CIVIL ACTION NO.
2:16cv786-MHT
(WO)
OPINION AND ORDER
This case is before the court on petitioner Samuel
Allan McCormick’s motion to file an out-of-time appeal.
On
denying
March
25,
2019,
McCormick’s
this
motion
court
for
entered
relief
an
from
order
final
judgment under Fed. R. Civ. P. 60(b)(4), by which he
had
sought
relief
from
this
court’s
November
2016
judgment denying his 28 U.S.C. § 2254 habeas petition
without
an
evidentiary
hearing.
McCormick
did
not
appeal from this court’s March 25 order.
On August 23, 2019, McCormick filed the pending
motion to file an out-of-time appeal pursuant to Rule
4(a)(6) of the Federal Rules of Appellate Procedure.* As
grounds
for
his
motion,
he
states
that
he
did
not
receive a copy of the court’s March 25 order and that
it
was
not
until
July
2,
through
an
order
of
the
Eleventh Circuit Court of Appeals denying a petition
for writ of mandamus he filed, that he first learned
this court had denied his Rule 60(b)(4) motion.
See
Motion to File an Out-of-Time Appeal (doc. no. 109) at
2.
McCormick requests that this court grant his August
23
motion
and
reopen
the
time
to
file
an
appeal.
According to McCormick: “No party will be prejudiced by
*
Although McCormick’s motion was date-stamped as
received in this court on August 29, 2019, the court,
under the prison mailbox rule, deems the motion to have
been filed on the date McCormick represents that he
delivered it to prison authorities for mailing, i.e.,
August, 23, 2019. See Houston v. Lack, 487 U.S. 266,
271-72 (1988); Washington v. United States, 243 F.3d
1299, 1301 (11th Cir. 2001).
2
the
allowance
of
this
out-of-time
appeal.
However,
refusal to grant this motion will prejudice McCormick.”
Id.
Rule
4(a)(1)
of
the
Federal
Rules
of
Appellate
Procedure provides that a party who wants to appeal a
judgment or order entered in a civil case must file a
notice of appeal with the clerk of the district court
within 30 days after entry of the judgment or order
appealed from.
Rule 4(a)(6) of the Federal Rules of
Appellate Procedure authorizes the district court to
reopen the time for filing an appeal upon a motion,
where all the following conditions are satisfied:
“(A) 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;
“(B) the motion is filed 180 days
after the judgment or order is entered
or within 14 days after the moving
party receives notice under Federal
Rule of Civil Procedure 77(d) of the
entry, whichever is earlier; and
3
“(C) the court finds
would be prejudiced.”
that
no
party
Fed. R. App. P. 4(a)(6).
Considering McCormick’s August 23 motion in light
of the requirements of Rule 4(a)(6), this court finds
the factual assertions in it are credible and therefore
finds he did not receive, within 21 days after entry,
notice of this court’s March 25 order denying his Rule
60(b)(4)
motion.
See
Fed.
R.
App.
P.
4(a)(6)(A).
Further, the court is satisfied, and therefore finds,
that no party would be prejudiced by the reopening of
the time for him to file an appeal from the March 25
order. See Fed. R. App. P. 4(a)(6)(C).
Rule 4(a)(6)(B) provides an outer time limit of 180
days, after entry of the judgment or order sought to be
appealed,
for
moving
to
reopen
the
time
to
appeal.
Under this outer time limit, McCormick would have until
September
21,
2019,
to
move
to
reopen
the
time
to
appeal from this court’s March 25 order. He filed this
4
motion
on
August
23,
2019--well
within
the
180-day
limit.
Under
Rule
4(a)(6)(B),
McCormick
must
also
have
moved to reopen the time to appeal within 14 days after
he
received
notice,
under
Federal
Rule
of
Civil
Procedure 77(d), of the entry of this court’s March 25
order, if that time is earlier than 180 days after
entry of that order. McCormick states that he learned
of
this
60(b)(4)
court’s
motion
March
through
25
order
statements
denying
by
his
the
Rule
Eleventh
Circuit in its July 2 mandamus order. See Motion to
File an Out-of-Time Appeal (doc. no. 109) at 2.
Thus,
it could be argued that McCormick had actual notice of
this court’s March 25 order by way of those statements
by the Eleventh Circuit. McCormick filed his motion to
reopen the time to appeal on August 23--more than 14
days
after
order.
entry
of
the
Eleventh
Circuit’s
July
2
However, the 14-day limit in Rule 4(a)(6)(B)
applies where “the moving party receives notice under
5
Federal Rule of Civil Procedure 77(d) of the entry.”
(Emphasis added.) And Rule 77(d) provides that notice
of entry of the judgment or order is to be served by
the
clerk
of
the
district
court,
or
by
a
party
as
specified in Fed. R. Civ. P. 5(b). See Fed. R. Civ. P.
77(d).
order
Because
that
may
any
have
notice
of
been
this
contained
court’s
in
the
March
25
Eleventh
Circuit’s July 2 order was not served by the clerk of
the district court, or by a party as specified in Rule
5(b), such notice was not notice for purposes of Rule
77(d). Because McCormick has received no notice under
Rule 77(d), the 14-day limit in Rule 4(a)(6)(B) does
not bar his August 23 motion to reopen the time to
appeal.
And
because
his
August
23
motion
was
filed
within 180 days after the entry of this court’s March
25 order, the August 23 motion is timely under Rule
4(a)(6)(B).
***
6
Accordingly, because McCormick’s motion to reopen
the time to appeal satisfies all the requirements of
Rule
4(a)(6),
it
is
ORDERED
that
petitioner
Samuel
Allan McCormick’s motion to file an out-of-time appeal
(doc.
no.
109)
is
granted,
and
thus
the
time
for
petitioner McCormick to file an appeal is reopened.
Petitioner
McCormick
is
advised
that
any
notice of appeal of this court’s order of March
25, 2019, denying his Rule 60(b)(4) motion, must
be
filed
within
14
days
after
entry
of
this
order, which has been entered today. See Fed. R.
App. P. 4(a)(6).
DONE, this the 3rd day of September, 2019.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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?