Garrett v. United States of America

Filing 27

ORDER Directing the Clerk to serve a copy of this Order to the Eleventh Circuit Court of Appeals re 19 Notice of Appeal filed by Jamaal John Thomas Garrett. Signed by Magistrate Judge G. R. Smith on 3/3/17. (jrb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
JAMAAL JOHN THOMAS
GARRETT,
Movant,

v.
UNITED STATES,
Respondent.

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CV615-031
CR613-011

ORDER
On limited remand, doc. 24,1 this Court must find facts so the
Eleventh Circuit can determine whether 28 U.S.C. § 2255 movant
Jamaal John Thomas Garrett is entitled to reopen, per Fed. R. App. P.
4(a)(6), his otherwise untimely appeal from this Court’s August 9, 2016
judgment against him. 2 Appellants who miss Fed. R. App. P. 4(a)(1)(A)’s

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The Court is citing to the Civil Docket. All page numbers refer to the numbers
applied by this Court’s EM/ECF system, irrespective of the document’s internal
pagination.
This Court issued a Report and Recommendation to deny Garrett § 2255 relief.
Garrett v. United States , 2016 WL 1296183 (S.D. Ga. Mar. 30, 2016). The district
judge adopted it on April 27, 2016, Garrett v. United States, 2016 WL 1704170 (S.D.
Ga. Apr. 27, 2016), but did not enter its judgment until August 9, 2016. Doc. 17.
Garrett’s Notice of Appeal did not show up at this Court’s Clerk’s office until October
20, 2016, and it bears no date next to his signature. Doc. 19 at 1, 2.
2

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30-day deadline to appeal can be granted a second chance under Rule
4(a)(6), but only under these conditions:
First, the court must find that the moving party did not receive
notice within 21 days of the entry of the order or judgment that it
seeks to appeal. Id . 4(a)(6)(A). Second, the party must move to
reopen the appeal period within 180 days after the order or
judgment is entered or within 14 days after receiving notice of the
entry , whichever is earlier . Id . 4(a)(6)(B). Third, the court must
find that no party would be prejudiced if the window to appeal were
reopened. Id . 4(a)(6)(C).

Holsey v. Warden , 613 F. App’x 913, 914 (11th Cir. 2015) (emphasis
added); doc. 25 at 1-2.
This Court entered its judgment against Garrett on August 9, 2016.
Doc. 17. Garrett’s Notice of Appeal is postmarked October 17, 2016
(69 days later) -- well past the 30-day limit. Doc. 19 at 3. “However,” the
appeals court notes, “Mr. Garrett suggests in his notice of appeal that he
did not receive any notice about his case from the district court until
September 15[, 2016].” Doc. 24 at 1. If that “notice” included a copy of
this Court’s judgment, then it would be undisputed that 32 days elapsed
between September 15, 2016 and his October 17, 2016 post-marked
Notice of Appeal. Doc. 19 at 3. That’s more than “within 14 days after
receiving notice of the entry,” the applicable Rule 4(a)(6)(B) time limit,
thus knocking Garrett out of Rule 4(a)(6)’s “second chance” zone.
2

So, the pivotal question is: When did Garrett receive a copy of this
Court’s judgment? Since he never did say, the Court asked him and
directed him to respond with a “Mingo Statement.” Doc. 25 at 6-8. In
his response he represents that he received a copy of this Court’s
judgment on September 15, 2016. Doc. 26 at 1. Accordingly, the Court
finds that he did not receive notice within 21 days of the entry of the
order or judgment that he seeks to appeal. Rule 4(a)(6)(A).
That takes him to Holsey ’s next step: Whether he moved to reopen
the appeal period within 180 days after the order or judgment was
entered or “within 14 days after receiving notice of the entry, whichever

is earlier.” Rule 4(a)(6)(B) (emphasis added). Since Garrett says he
received a copy of the judgment on September 15, 2016, he had to place
his Notice of Appeal in his prison’s mail by September 29, 2016 -- 14 days
later. He admits he did not do so until October 9, 2016. Doc. 26 at 2.
That 24-day period (September 15, 2016 - October 9, 2016) takes him
beyond the Rule 4(a)(6)(B)’s 14-day deadline. The Court so finds.
The Clerk is DIRECTED to ensure that the Eleventh Circuit
receives prompt notice of this ruling.

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SO ORDERED, this 3rd day of March, 2017.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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