Thomas v. Pierce et al

Filing 13

MEMORANDUM. Signed by Judge Gregory M. Sleet on 2/5/18. (sar)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JAMES A. THOMAS,
Petitioner,
Civ. Act. No. 16-631-GMS

V.

DANA METZGER, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.

MEMORANDUM
I.

INTRODUCTION
In 1993, Thomas pled guilty to first and second degree unlawful sexual intercourse, and

he was sentenced to life in prison plus twenty years. (D.I. 1-1 at 2) In 2001, this court dismissed
as time-barred Thomas' first habeas petition challenging his 1993 convictions. See Thomas v.

Snyder, 2001 WL 1297812 (D. Del. Oct. 3, 2001). In 2016, Thomas filed another habeas petition
challenging his 1993 convictions, which the Honorable Sue L. Robinson dismissed on January
23, 2017 for lack jurisdiction because it was an unauthorized second or successive habeas
petition. (D.I. 3; D.I. 4)
On February 1-2, 2017, a hostage incident took place at the James T. Vaughn
Correctional Center in Smyrna, Delaware, where Thomas is housed. The docket demonstrates
that Thomas did not file a notice of appeal from the January 23, 2017 during the months of
January, February, March, April, and May 2017.
Apparently, in a letter dated April 28, 2017 and sent directly to the Third Circuit Court of
Appeals, Thomas inquired about the status of his appeal from the dismissal of his petition. (D.I.

5 at 3) In a letter dated May 8, 2017, the Third Circuit informed Thomas that a Court of Appeals
cannot extend the time to appeal or excuse an untimely notice of appeal, and that only the
District Court may grant such an extension. (D.I. 5 at 3) On June 2, 2017, Thomas filed a
motion for an extension of time to file an appeal, citing Federal Rules of Appellate Procedure
4(a)(5) and 4(a)(6). (D.I. 5 at 1)
In October 2017, Thomas filed a Notice of Appeal in this court. (D.I. 6) On November
1, 2017, the Third Circuit issued an order explaining that the appeal would be held in abeyance
until the disposition of Thomas"'motion to reopen the appeal pursuant to Fed. R. App. R.
4(a)(6)." (D.I. 10) On November 22, 2017, Thomas filed a Rule 60(b)(6) motion for
reconsideration. (D .I. 11)

II.

MOTION TO REOPEN TIME TO APPEAL
"The taking of an appeal within the prescribed time is mandatory and jurisdictional."

Bowles v. Russell, 551 U.S. 205, 209 (2007). In order to comply with Federal Rule of Appellate
Procedure 4(a)(l )(A)'s 30 day period for filing an appeal, Thomas had to file his notice of appeal
by February 23, 2017. Thomas filed his motion to reopen 1 the time file an appeal on June 2,
2017, 100 days after the last date on which he could have filed a timely appeal.
Pursuant to Federal Rule of Appellate Procedure 4(a)(6) ("Rule 4(a)(6)"), the court may
grant Thomas' motion to reopen the time appeal for 14 days if: (A) Thomas did not receive
notice of the dismissal of his second or successive habeas petition within 21 days after entry of

1

Given the Third Circuit's characterization of Thomas' appeal request as a motion to
reopen the appeal pursuant to Fed. R. App. 4(a)(6), (D.I. 10), and not also as a motion to extend
the time to file an appeal pursuant to Fed. R. App. 4(a)(5), the court will treat Thomas' motion
as only seeking to reopen the time to appeal under Fed. R. App. 4(a)(6).
2

the judgment of dismissal (February 14, 2017); (B) Thomas filed his motion to reopen the time to
appeal within 180 days after the entry of the judgment of dismissal (July 24, 2017) or within 14
days after he received notice under Federal Rule of Civil Procedure 77(d) of the entry of the
judgment of dismissal, whichever is earlier; and (C) no party would be prejudiced. See Fed. R.
App. P. 4(a)(6).
In this case, the memorandum and order dismissing Thomas' habeas petition was signed
and entered on the docket on January 23, 2017. Eight days later, a hostage incident took place in
the prison where Thomas was (and still is) housed. The prison was put on lockdown during the
emergency hostage situation and remained on lockdown for an unspecified time thereafter.
Given these unique circumstances, the court will presume that Thomas did not receive notice of
the dismissal of his petition by February 14, 2017, thereby satisfying Rule 4(a)(6)(A).
As for Rule 4(a)(6)(B)'s requirements regarding the timing of the motion's filing,
Thomas does not address, and the court cannot discern, whether he filed the motion to reopen
within 14 days after receiving Fed. R. Civ. P. 77(d) notice of the dismissal of his petition.2
However, Thomas did file his motion to reopen the time to appeal on June 2, 2017, which was
well-before the July 24, 2017 expiration date for the 180 day filing period. Once again, given the
extremely unique circumstances caused by the hostage situation, the court views Thomas'
compliance with the 180 day filing requirement as satisfying Fed. App. Proc. R. 4(a)(6)(B).

2

The Advisory Committee Note for the 2002 Amendments to Subdivision (a)(6)(B) of
Rule 4 states that "only formal notice of the entry of a judgment or order under Civil Rule 77( d)
will trigger the 7-day period to move to reopen the time to appeal." See Fed. R. App. P
4(a)(6)(B), Advisory Committee Notes. Rule 77(d) notice is satisfied if a party is "notified of a
judgment or order by either the clerk or another party" within the delineated time period after
entry. Id. The time set in Subdivision (a)(6)(B) was changed from 7 days to 14 days in 2009. Id.

3

Finally, Fed. R. App. Proc. 4(a)(6)(C) is satisfied, because no party will be prejudiced by
granting the motion to reopen.
Based on the foregoing, the court will grant Thomas' motion to reopen the time to appeal
the January 23, 2017 dismissal of his habeas petition. (D.I. 5) Since Thomas already filed a
notice of appeal on October 27, 2017, the court will not direct him to file another notice of
appeal.

III.

MOTION FOR RECONSIDERATION FILED PURSUANT TO FEDERAL RULE
OF CIVIL PROCEDURE 60(b)(6)
A motion for reconsideration filed pursuant to Federal Rule of Civil Procedure 60(b)

"allows a party to seek relief from a final judgment, and request reopening of his case, under a
limited set of circumstances including fraud, mistake, and newly discovered evidence."

Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). Rule 60(b) motions are addressed to the sound
discretion of the trial court, and are guided by accepted legal principles applied in light of all
relevant circumstances. See Pierce Assoc., Inc. v. Nemours Found., 865 F.2d 530, 548 (3d Cir.
1988).
Additionally, when, as here, a district court is presented with a motion to reconsider after
it has denied the petitioner's federal habeas petition, the court must first determine if the motion
constitutes a second or successive application under the Antiterrorism and Effective Death
Penalty Act ("AEDP A"). As articulated by the Third Circuit,
in those instances in which the factual predicate of a petitioner's Rule 60(b) motion
attacks the manner in which the earlier habeas judgment was procured and not the
underlying conviction, the Rule 60(b) motion may be adjudicated on the merits.
However, when the Rule 60(b) motion seeks to collaterally attack the petitioner's
underlying conviction, the motion should be treated as a successive habeas petition.

4

Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004). Under AEDPA, a prisoner cannot file a
second or successive habeas application without first obtaining approval from the appropriate
court of appeals and, absent such authorization, a district court cannot consider the merits of a
subsequent application. See 28 U.S.C. § 2244(b)(3)(A); Robinson v. Johnson, 313 F.3d 128,
139-40 (3d Cir. 2002).
In his pending Rule 60(b) motion, Thomas merely reasserts the same ineffective
assistance of counsel arguments he raised in his second or successive habeas petition (D.1. 1) and
in his original habeas petition. See Thomas, 2001 WL 1297812, at *2. These arguments
challenge his underlying convictions. Therefore, the court will deny the pending Rule 60(b )(6)
motion because it constitutes an unauthorized second or successive habeas petition under 28
U.S.C. § 2244.

IV.

MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS
Having reviewed Thomas' trust fund account statement, the court will grant Thomas'

motion for leave to appeal informa pauperis. (D.I. 7)

V.

CONCLUSION
For the aforementioned reasons, the court will grant Thomas' motion to reopen the

appeal, grant his motion for leave to proceed informa pauperis, and deny his Rule 60(b)(6)
motion. The court will not issue a certificate of appealability with respect to its denial of the
Rule 60(b )( 6) motion, because Thomas has failed to make a "substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2); see United States v. Eyer, 113 F.3d 470 (3d

5

Cir. 1997); 3d Cir. LAR 22.2 (2011 ). A separate order will be entered.

DATE

6