Harris v. USA

Filing 20

ORDER denying motion for leave to file 12 Notice of Appeal out of time filed by Victoria McGee Harris. See Order for details. Signed by Judge David R. Herndon on 3/10/15. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

VICTORIA MCGEE PETITIONER,
Petitioner,

No. 13-0963-DRH

vs.

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM and ORDER
HERNDON, District Judge:
Pending before the Court is petitioner’s motion for leave to file out of
date (Doc. 12), which the Seventh Circuit Court of Appeals, on March 6,
2015, instructed this Court to treat as a request to extend and reopen the
time to appeal under Fed. R. App. 4. (a)(5), (6) (Doc. 19). Specifically, the
Seventh Circuit directed the undersigned to “determine whether petitionerappellant Harris has complied with the rules filing requirements, and if she
has, then to determine whether to extend or reopen the time to appeal.”
Based on the following, the Court DENIES petitioner’s request.
On October 9, 2014, the Court denied petitioner’s 28 U.S.C. § 2255
petition/motion, dismissed with prejudice her case and declined to issue a
certificate of appealabilty (Doc. 10).

The Clerk of the Court entered

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judgment reflecting the same on October 14, 2014 (Doc. 11). At the time
the Court entered its Memorandum and Order and the Judgment,
petitioner was represented by retained counsel, Bradford Kessler. 1

On

January 12, 2015, petitioner filed the motion for leave out of time with the
Seventh Circuit Court of Appeals, which the Seventh Circuit construed as a
notice of appeal (Doc. 12-1). 2 On February 11, 2015, the Seventh Circuit
directed this Court to rule on petitioner’s motion for leave to appeal in
forma pauperis (Docs. 16, & 17, respectively). That same day, the Court
denied petitioner’s motion to appeal in forma pauperis (Doc. 18).
Here, petitioner moves the Court to allow her January 12, 2015
notice of appeal to be deemed timely filed. Petitioner contends that her
counsel did not inform her about the outcome of her case and that she
found the Court’s Memorandum and Order and the Judgment on December
28, 2014 while using the Waseca Federal Prison’s limited law library
resources.

She further contends that on January 2, 2015, she received

confirmation from the Waseca Federal Prison that she did not receive legal
mail from October 10, 2014 through December 14, 2014, leaving her
without mail notification of the ruling from the Court.
Under Federal Rule of Appellate Procedure 4(a)(1), petitioner had
sixty days from the date of this Court’s Judgment, or until December 15,

During her criminal case, petitioner was represented by N. Scott Rosenblum and Adam Fein.
The pleading was entered on the Court’s electronic docket system on January 27, 2015
and contains a file date of January 15, 2105.

1
2

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2014, to file her notice of appeal for the Section 2255 petition. 3
Fed.R.App.4(a)(1)(B).

She did not do so.

See

However, Federal Rule of

Appellate Procedure 4 provides two avenues by which parties may seek to
extend the time to file a notice of appeal. First, Federal Rule of Appellate
4(a)(5) provides:
(A) The district court may extend the time to file a notice of appeal if:
(i)
a party so moves no later than 30 days after the time
prescribed by this Rule 4(a) expires; and
(ii)
regardless of whether its motion is filed before or during
the 30 days after the time prescribed by this Rule 4(a)
expires, that party shows excusable neglect or good cause.

See Fed.R.App. 4(a)(5)(A). Thus, petitioner must have filed the extension of
time on or before January 14, 2015, which she did on January 12, 2015,
and show either excusable neglect or good cause.
The question thus becomes whether she has shown “excusable
neglect or good cause” for her delay in seeking appellate review. “‘The
excusable neglect standard applies in situations in which there is fault; in
such situations, the need for extension is usually occasioned by something
within the control of the movant.’ On the other hand, the good cause
standard ‘applies in situations in which there is no fault – excusable or
otherwise.’ ” Sherman v. Quinn, 668 F.3d 421, 425 (7th Cir. 2012)(quoting
Fed. R.App. P. 4 cmt. 2002 Subdivision (a)(5)(A)(ii)); see also Lorenzen v.

Emps. Ret. Plan, 896 F.2d 228, 232 (7th Cir. 1990). Excusable neglect

By the Court’s calculation, sixty days from October 14, 2015 is December 13, 2014. As
December 13, 2014 is a Saturday, petitioner had until, Monday, December 15, 2014 to file
the notice of appeal. See Federal Rule of Civil Procedure 6(a)(C).

3

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occurs

only

in

unusual

circumstances;

counsel's

inadvertence

or

miscalculation are not sufficient reasons to extend time. See United States

v. Alvarez–Martinez, 286 F.3d 470, 473 (7th Cir. 2002). A layers deliberate
and purposeful decision not to pursue an appeal is not neglect at all. See

Lee v. Price, 463 Fed.Appx. 575 *3 (7th Cir. 2011)(citing Gann v. Smith,
443 F.2d 352, 353 (5th Cir.1971)). Here, petitioner has given the Court no
indication of any circumstances that constitute “good cause” or “excusable
neglect.” Further, the Court, as it previously stated, declined to issue a
certificate of appealability.
The second option is through Federal Rule of Appellate Procedure
4(a)(6), which permits the district court to reopen the time for filing a
notice of appeal for 14 days after the date when an order to reopen is
entered provided that the following conditions are met: (i) “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”; (ii) “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 (iii) “the court finds that no party would be
prejudiced.” Fed. R.App. P. 4(a)(6).
On October 14, 2014, the Clerk of the Court entered a Rule 58
Judgment in the Court’s electronic docketing system (Doc. 11).

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The

Judgment advised the parties of the October 10, 2014 Memorandum and
Order denying and dismissing with prejudice petitioner’s Section 2255
petition and advised that parties that Judgment was entered in favor of
respondent and against petitioner. This Judgment was sent to the parties’
attorneys electronically pursuant to Federal Rule of Procedure 77(d).
Petitioner alleges that her counsel never sent her a copy of the
judgment, thereby raising the question of whether she received sufficient
notice under Federal Rule of Civil Procedure 77(d). However, when counsel
is given notice of the entry of judgment, that notice in most circumstances
is imputed to the client. See Pioneer Inv. Servs. Co. v. Brunswick Assocs.

Ltd. Partnership, 507 U.S. 380, 397, 113 S.Ct. 1489, 123 L.Ed.2d 74
(1993) (“each party is deemed bound by the acts of his lawyer-agent and is
considered to have notice of all facts, notice of which can be charged upon
the attorney”) (internal quotation marks omitted); Resendiz v. Dretke, 452
F.3d 356, 362 (5th Cir. 2006) (notice received by counsel is imputed to
client); see also Johnson v. McBride, 381 F.3d 587, 589–90 (7th Cir. 2004)
(”[Lawyers are agents. Their acts (good and bad alike) are attributed to the
clients they represent.”). The record reflects, through the Court’s electronic
docketing system, that petitioner’s retained counsel electronically received
notice of the Judgment (and he also electronically received notice of the
Memorandum and Order).

Thus, notice of the Judgment is imputed to

petitioner, rendering petitioner unable to satisfy the first condition for relief

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under Federal Rule of Appellate Procedure 4(a)(6). See Resendiz, 452 F.3d
at 362 (citing Herrera v. I.N.S., 2 Fed. Appx. 603, 604 (8th Cir.2001) (nonprecedential decision) (holding notice to counsel of judgment constituted
notice to petitioner and finding Rule 4(a)(6) motion untimely); Marcangelo

v. Boardwalk Regency, 47 F.3d 88, 90 (3d Cir. 1995)); Vahan v. Shalala, 30
F.3d 102, 103 (9th Cir. 1994) (holding that notice to counsel constitutes
notice to party for Petitioner purposes of Rule 4(a)(6)).
Any claim by the petitioner that the time for filing an appeal should
be tolled due to counsel's failure to transmit notice to her of the Court's
Judgment is unavailing because the “timely filing of a notice of appeal in a
civil case is a jurisdictional requirement” for which no equitable exception
exists. See Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168
L.Ed.2d 96 (2007) (holding that time limits specified in FRAP 4 are
“jurisdictional”

and

overruling

prior

cases

recognizing

“exceptional

circumstances” doctrine under which untimely filing could be excused); cf.

Holland v. Florida, 560 U.S. 631, 645-647, 130 S.Ct. 2549, 2560, 2561,
177 L.Ed.2d 130 (2010) (allowing equitable tolling of AEDPA's statute of
limitations because limitations period is not jurisdictional). The outcome
arguably might be different if petitioner could demonstrate that counsel
abandoned her prior to the entry of Judgment. However, the record
demonstrates that at the time of the October 14, 2014 Judgment, petitioner
was represented by retained counsel; retained counsel filed petitioner’

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habeas pleadings and never moved to withdraw prior to the entry of
Judgment.
Accordingly, the Court DENIES petitioner’ motion for leave to file out
of date (Doc. 12).
IT IS SO ORDERED.
Signed this 10th day of March, 2015.

Digitally signed by
David R. Herndon
Date: 2015.03.10
15:52:16 -05'00'
United States District Judge

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