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