Mitchell v. United States of America

Filing 21

ORDERm Petitioner Devon Mitchell's motion for an extension of time to file an out of time appeal 20 is denied; Petitioner's request to stay his Rule 60(b) motion is denied as moot. Signed by Judge David G Campbell on 5/29/13.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-11-00580-PHX-DGC
CR-05-0886-PHX-DGC

Devon Mitchell,
Petitioner,

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ORDER

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v.

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United States of America,

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Respondent.

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Petitioner Devon Mitchell has filed a request for an extension of time to file an

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out-of-time appeal. Doc. 20. Mitchell seeks to appeal this Court’s order of May 17,

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2012, denying his petition to vacate, set aside, or correct his sentence under 28 U.S.C.

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§ 2255. See Doc. 18. Mitchell contends that he never received a copy of that order, and

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became aware of it only through a phone call to the Court on March 22, 2013. Doc. 20.

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Mitchell attaches to his motion an uncertified copy of a letter from the Records

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Department of the Lee County Penitentiary stating that there is no record of the mailroom

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logging receipt of legal mail for Mitchell from March through July 2012. Id. at 3. The

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Court will presume for purposes of this order that Mitchell did not receive notice of entry

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of judgment until the phone call on March 22, 2013.

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Federal Rule of Civil Procedure 77(d)(2) states that lack of notice of entry of

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judgment does not affect the time allowed for appeal except as provided by Federal Rule

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of Appellate Procedure (4)(a). Fed. R. Civ. P. 77(d)(2). Under Rule (4)(a), a notice of

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appeal must be filed with the district clerk within 30 days after entry of judgment. Fed.

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R. App. P. 4(a)(1)(A). The Court may extend this time if a party moves for an extension

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no later than 30 days after the time for appeal expires and shows excusable neglect or

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good cause. Id. at 4(a)(5)(A). If a party fails to file for an extension within this time, the

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court may reopen the time to appeal only if it finds that the moving party did not receive

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notice of entry of judgment within 21 days after entry, the motion was filed within 180

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days after judgment was entered or 14 days after notice was received, whichever is

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earlier, and no party would be prejudiced. Id. at 4(a)(6).

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In describing the phone call by which he learned of the Court’s order, Mitchell

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states that “I called this court, via my counselor Mr. Hines on March 22, 2013.” Doc. 20.

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Although it is not clear whether Mr. Mitchell or Mr. Hines talked with the clerk, Mr.

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Mitchell describes things he said to the clerk during the call and states that the “Clerk

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informed me that a ruling had been rendered on my 2255 motion on May 16, 2012,

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denying my motion.”

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Department at the Lee County facility on the same day – March 22, 2013 – “inquiring if

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any legal mail had came [sic] for me between March and July of 2012.” Id. Thus,

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whether Mr. Mitchell or Mr. Hines actually placed the call, it is apparent that Mr.

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Mitchell personally learned of the Court’s order on March 22, 2013

Id.

Mr. Mitchell then states that he contacted the Records

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Mitchell filed this motion on May 20, 2013. This was more than 14 days after he

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received notice of the Court’s judgment on March 22, 2013, and well beyond 180 days

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after the judgment was entered. Even accepting that Mitchell did not receive the notice

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mailed to him, the Court lacks authority to reopen the time for appeal now. Fed. R. App.

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P. 4(a)(6).

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Even if the Court were able to reopen the time for appeal, the Court finds that

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Mitchell cannot satisfy the grounds for a certificate of appealability. A certificate of

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appealability may issue for a § 2255 proceeding “only if the applicant has made a

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substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

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When the district court rejects a constitutional claim on the merits, “[t]he Petitioner must

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demonstrate that reasonable jurists would find the district court’s assessment of the

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constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000);

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see Silva v. Woodford, 279 F.3d 825, 832 (9th Cir. 2002). When the district court rejects

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a claim on procedural grounds, a petitioner must show that “jurists of reason would find it

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debatable whether the petition states a valid claim of the denial of a constitutional right

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and that jurists of reason would find it debatable whether the district court was correct in

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its procedural ruling.” Slack, 529 U.S. at 484.

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Mitchell raised six claims in his § 2255 motion. Doc. 6. Magistrate Judge Mark

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E. Aspey rejected all six claims, and Mitchell objected to Judge Aspey’s ruling on four

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claims. See Doc. 18 at 3. The Court found that all four claims were procedurally

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defaulted and three of them also failed on the merits. Id. at 4-9. The Court did not

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address the merits of Mitchell’s claim of insufficiency of the evidence because this claim

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had been resolved on direct appeal by the Ninth Circuit and the Court found that Mitchell

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had not shown a probability of actual innocence that would allow this Court to seek to

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undo the Ninth Circuit’s ruling. Id. at 7-8 (citing e.g., McCleskey v. Zant, 499 U.S. 217,

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227 & n. 8; Feldman v. Henman, 815 F.2d 1318, 1321-22 (9th Cir. 1987)). The Court

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finds that reasonable jurists would not find its assessment of Mitchell’s constitutional

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claims debatable or wrong, and that reasonable jurists would not find it debatable that the

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Court was correct on its procedural ruling.

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merited.

Thus, no certificate of appealability is

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Mitchell states that he also has enclosed a motion for relief from judgment

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pursuant to Rule 60(b) and asks the Court to stay the motion pending its ruling on the

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motion for an extension to file an out-of-time appeal. Doc. 20 at 1-2. The Court is not in

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receipt of a Rule 60(b) motion and will deny Mitchell’s request for a stay as moot.

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IT IS ORDERED:

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Petitioner Devon Mitchell’s motion for an extension of time to file an out

of time appeal (Doc. 20) is denied.

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Petitioner’s request to stay his Rule 60(b) motion is denied as moot.

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Dated this 29th day of May, 2013.

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