Hamilton v. The United States of America
Filing
28
ORDER denying 23 Motion to Reopen the Time to File His Notice of Appeal and Request for Certificate of Appealability; dismissing as moot 25 Motion for Extension of Time. Signed by Judge William T. Moore, Jr. on 03/07/2012. (lmm)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
SHAWN HAMILTON,
Petitioner,
)
3
V.
)
UNITED STATES OF AMERICA,
Respondent.
CASE NO. CV409-102
r
-
t
t
)
)
r.)
(Ji
ORDER
Before the Court is Petitioner's "Motion to Reopen the
Time to File His Notice of Appeal and Request for Certificate
of Appealability." (Doc. 23.)
Petitioner's motion is DENIED.
For the following reasons,
Additionally, Petitioner's
"Motion for Extension of Time to File Response" (Doc.
DISMISSED
AS
25)
is
MOOT.
Petitioner was sentenced to 157 months' imprisonment
after a jury found him guilty of possessing with intent to
distribute crack cocaine and ecstasy, possessing a firearm by
a convicted felon, and carrying a firearm in relation to a
drug trafficking crime. (CR407-122 Doc. 53.) After
unsuccessfully appealing his conviction, United States v.
Hamilton, 299 F. App'x 878 (11th Cir.
2008)
(per curiam),
Petitioner filed a motion to vacate under 28 U.S.C. § 2255.
(Doc. 1,) On September
17, 2009,
the Magistrate Judge issued
-
a report and recommendation that the § 2255 petition should be
denied (Doc. 7.) The Court then granted Petitioner's request
for additional time to file any objections to the report and
recommendation (Doc. 10). However, no objections were ever
filed.
On April 6, 2010, this Court adopted the report and
recommendation denying the § 2255 petition and closing the
case.
(Doc. 18.)
The Clerk of Court entered judgment
dismissing the petition on the same day. (Doc. 19.) Because
Petitioner had not apprised the Court of his current address
(Doc. 22), the April 6, 2010 order and judgment were returned
as undeliverable mail (Doc. 20)
. 1
After receiving Petitioner's
new address on August 23, 2010, the Clerk of Court mailed
Petitioner the previously returned docket entries, which
included the April 6, 2010 order and judgment as well as a
copy of the docket sheet. Those items were not returned to
the Clerk of Court as undeliverable.
Over five months later, on January 26, 2011, Petitioner
filed a motion seeking to reopen the case to file an appeal
1
In fact, Petitioner transferred prisons at least three times
between September 22, 2009 and August 16, 2010 (Doc. 26 Ex. A
3-7) and did not apprise the Court of any of these address
changes. The Court reminds Petitioner that "(elach attorney
and pro se litigant has a continuing obligation to apprise the
Court of any address change." S.D. Ga. L.R. 11.1; accord
Bazemore v. United States, 292 F. App'x 873, 875 n.4 (11th
Cir. 2008) (unpublished).
It
2
and requesting a certificate of appealability.
(Doc. 23.)
Petitioner alleges that, pursuant to Federal Rule of Appellate
Procedure 4(a)(6), he is entitled to have this Court reopen
the case because he never received formal notice of the order
or judgment. (Id. at 4.) The Government opposes on the
grounds that the motion is not timely. (Doc. 24.)
Generally, a party in a civil case has thirty days from
the date of entry of a judgment or order to file a notice of
appeal. Fed. R. App. P. 4 (a) (1) (A) . District courts have the
power to extend the time for filing a notice of appeal in two
situations. First, the Court may extend the time if a party
files a motion requesting an extension within thirty days of
the expiration of the original deadline and shows excusable
neglect or good cause. Id. 4 (a) (5) (A) . In effect, the party
must file the request within sixty days of the judgment or
order being appealed from. Second, the Court may reopen the
time for filing a notice of appeal if the moving party failed
to receive notice of the entry of the judgment or order being
appealed. Id. 4(a)(6). However, any motion requesting such
relief must be filed within 14 days after receiving notice of
the judgment or, no later than 180 days from entry of the
judgment or order being appealed, "whichever is earlier." Id.
4 (a) (6) (B) (emphasis added) .
3
Indeed, this Court is unable to grant Petitioner his
requested relief because his motion was filed 295 days after
the entry of judgment. The Federal Rules of Appellate
Procedure expressly forbid this Court from granting a motion
for an out of time appeal filed more than 180 days after the
entry of judgment. See Vencor Hosps., Inc. v. Standard Life &
Accident Ins. Co., 279 F.3d 1306, 1311 (11th Cir. 2002)
(noting that appellant was prevented from filing an out of
time appeal since "the judgment could not be reopened under
Rule 4(a) (6) because more than 180 days had elapsed since the
entry of the order"); see also Daniel v. United States, 231 F.
App'x 937, 937-38 (11th Cir. 2007) (unpublished) (per curiam)
(ruling that district court properly denied motion because it
was filed outside of the 180-day time limit prescribed in Rule
4 (a) (6)).
Furthermore, both the United States Supreme Court
and the Eleventh Circuit Court of Appeals have closed to
Petitioner the possibility of any equitable relief. See
Bowles v. Russell, 551 U.S. 205, 214 (2007) ("Today we make
clear that the timely filing of a notice of appeal in a civil
case is a jurisdictional requirement. Because this Court has
no authority to create equitable exceptions to jurisdictional
requirements, use of the 'unique circumstances' doctrine is
illegitimate."), Van Ferrell v. Grubbs, 45 F. App'x 860, 862
(11th Cir. 2002) (unpublished) (" ' [N]othing within Rule
4
4(a) (6) indicates it is permissive or that its limitations may
be waived for equitable reasons. The 180-day limitation
is specific and unequivocal.' " (quoting Clark v. Lavallie,
204
F.3d 1038,
1040
(10th Cir.
2000)
(alteration in
original))) . The notes to Rule 4(a) (6) (B) reinforce this
construction by stating that an appeal cannot be brought more
than 180 days after entry, no matter what the circumstances."
Fed. R. App. P. 4(a) (6) (B) advisory committee note to the 2005
amendments. This Court is constrained by this authority and,
as a result, Petitioner's motion must be DENIED.
Pursuant to 28 U.S.C. § 2253(c), an appeal may not be
taken in this matter unless the court issues a Certificate of
Appealability. This certificate may issue only if Plaintiff
has made a substantial showing of the denial of a
constitutional right.
(2000).
Slack v. McDaniel, 529 U.S. 473, 484
The Court has carefully considered Petitioner's
motion and finds that he cannot meet the above standard.
Accordingly,
Plaintiff's request for a Certificate of
Appealability is DENIED.
-'F"
SO ORDERED this "
day of March 2012.
WILLIAM T.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
5
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?