Barajas v. Falk et al

Filing 40

SUPPLEMENTAL FINDINGS RE ORDER GRANTING MOTION TO FILE APPEAL OUT OF TIME re: 38 Order. ORDERED that the time to appeal should be reopened pursuant to Fed. R. App. P. 4(a)(6). ORDERED that the Clerk of the Court shall supplement the preliminary record on appeal by transmitting to the Tenth Circuit Court of Appeals a copy of this order. By Judge Philip A. Brimmer on 12/15/2015. (agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-01827-PAB
JESSE BARAJAS,
Applicant,
v.
FRANCIS FALK, Warden, L.C.F., and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

SUPPLEMENTAL FINDINGS RE
ORDER GRANTING MOTION TO FILE APPEAL OUT OF TIME

This matter comes before the Court on the Order dated November 25, 2015 from
the United States Court of Appeals for the Tenth Circuit partially remanding this matter
for a determination of whether the time for petitioner to appeal should be reopened
under Fed. R. App. P. 4(a)(6). This Order supplements the Court’s Order Granting
Motion to File Appeal Out of Time [Docket No. 38].
Under Rule 4(a)(6), the district court may reopen the time to file an appeal for a
period of 14 days after the date when its order to reopen is entered, but only if 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 within 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

(C) the court finds that no party would be prejudiced.
Based on the Motion to File/Accept Notice of Appeal Out-of-Time [Docket No.
30], respondents’ response thereto [Docket No. 33], and petitioner’s Motion to
Supplement Record with Prison Mail Log [Docket No. 35], the Court makes the
following findings:
First, petitioner did not receive notice under Fed. R. Civ. P. 77(d) of the entry of
judgment or order sought to be appealed within 21 days after entry of judgment.
Petitioner has attached an email, which respondents have accepted as authentic, that
indicates that Bureau of Prisons staff checked petitioner’s legal mail log for the time
period July 15, 2015 to September 7, 2015 and determined that petitioner received no
legal mail during that time. The final judgment in this matter was issued on July 30,
2015 and was mailed to the petitioner on that date. See Docket No. 25. Although the
final judgment was sent to petitioner’s correct address, the legal mail log confirms
petitioner’s contention that he did not receive it before he filed his Motion to File/Accept
Notice of Appeal Out-of-Time on October 5, 2015, which is more than 21 days after
entry of judgment.
Second, petitioner’s Motion to File/Accept Notice of Appeal Out-of-Time was filed
within 180 days of the July 15, 2015 entry of judgment. In addition, that portion of the
rule stating that the district court may reopen the time for appeal “within 14 days after
the moving party receives notice under Federal Rule of Civil Procedure 77(d)” does not
apply to petitioner since he did not receive the judgment from the Court. Petitioner
states that he did not receive notice of entry of the judgment pursuant to Fed. R. Civ. P.
77(d), but rather learned of it through “searching the law library computer.” Docket No.
2

30 at 1. Since the mailing of the judgment on July 15, 2015, the Court has not sent
petitioner another copy of the judgment. Thus, petitioner did not receive notice under
Rule 77(d).
Third, the Court finds that no party would be prejudiced. Respondents have
indicated that they will not be prejudiced by the Court granting the motion. See Docket
No. 33 at 5 (“Respondents submit that they would not be prejudiced by the delay”).
Wherefore, it is
ORDERED that the time to appeal should be reopened pursuant to Fed. R. App.
P. 4(a)(6). It is further
ORDERED that the Clerk of the Court shall supplement the preliminary record on
appeal by transmitting to the Tenth Circuit Court of Appeals a copy of this order.

DATED December 15, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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