Newell v. Napel
Filing
37
ORDER DENYING Petitioner's re 36 Pleading for Mistake, 35 MOTION for Mistakes, Inadvertence, Exvusable Neglect, Newly Discovered Evidence, 33 Request for Hearing all filed by Alfonzo Newell. Signed by District Judge Victoria A. Roberts. (Ciesla, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALFONZO NEWELL,
Petitioner,
CASE NO. 2:11-10030
HONORABLE VICTORIA A. ROBERTS
v.
MICHAEL CURLEY,
Respondent.
____________________________/
ORDER DENYING PETITIONER’S REQUEST FOR A HEARING,
“MOTION FOR MISTAKES,” AND “PLEADING FOR MISTAKE”
On January 4, 2011, petitioner Alfonzo Newell filed a pro se habeas corpus
petition, challenging his Wayne County conviction and sentence for criminal sexual
conduct in the first degree. On August 25, 2011, the Court denied the petition on the
merits. Petitioner appealed the Court’s decision, but on January 6, 2012, the United
States Court of Appeals for the Sixth Circuit dismissed the appeal because the notice of
appeal was untimely. Petitioner subsequently asked this Court to extend the time to file
a notice of appeal or to reopen the time to file an appeal. The Court denied the motion
after concluding that the Court could not extend the time for filing an appeal and that
Petitioner had not satisfied the conditions for reopening the time for filing an appeal.
Currently before the Court are Petitioner’s request for a hearing, his “Motion for
Mistakes, Inadvertence, Excusable Neglect, [and] Newly Discovered Evidence,” and his
“Pleading for Mistake, Inadvertence, Excusable Neglect, [and] New Discovered
Evidence.”
The request for a hearing appears to seek money damages and an opportunity to
present additional facts regarding mail room procedures at Baraga Correctional Facility
in Baraga, Michigan where Petitioner is incarcerated. The request also includes a claim
that prison officials at the Baraga prison are falsifying major misconduct incidents about
Petitioner to justify his custody level. In light of these allegations, the Court construes
the request for a hearing to be a challenge to Petitioner’s living conditions.
The proper vehicle for challenging the conditions of prison life is a civil rights
complaint under 42 U.S.C. § 1983, not a habeas corpus petition. Preiser v. Rodriguez,
411 U.S. 475, 499 (1973). Consequently, the Court denies Petitioner’s request for a
hearing (dkt. #33).
Petitioner’s “Motion for Mistake” and “Pleading for Mistake” appear to allege that
the Michigan Court of Appeals erred in dismissing Petitioner’s appeal from this Court’s
dispositive opinion and judgment. Petitioner appears to be saying that his notice of
appeal was timely under the prison “mailbox rule,” which states that a notice of appeal is
deemed filed when a habeas petitioner delivers the notice to prison authorities for
forwarding to the court clerk. Houston v. Lack, 487 U.S. 266, 276 (1988). Petitioner
alleges that he handed his notice of appeal to prison officials on September 26, 2011.
The Michigan Court of Appeals determined that the notice was placed in the
prison mail on September 28, 2011, and was late. See Newell v. Curley, No. 11-2248
(6th Cir. Jan. 6, 2012) (unpublished order stating that “the notice of appeal in this case
was required to be filed by September 26, 2011; thus the notice of appeal placed in the
prison mail on September 28, 2011, is late”). Even if Petitioner submitted his notice of
appeal to prison officials on September 26, 2011, a federal court of appeals determines
its own jurisdiction. Carson v. United States Office of Special Counsel, 633 F.3d 487,
2
491 (6th Cir.) (quoting Dickerson v. McClellan, 37 F.3d 251, 252 (6th Cir. 1994)), cert.
denied, __ U.S. __, 132 S. Ct. 857 (2011). And whether Petitioner’s notice of appeal
was timely is a question of law over which the Court of Appeals exercises plenary
review. Lizardo v. United States, 619 F.3d 273, 276 (3d Cir. 2010) (quoting DL Res.,
Inc. v. FirstEnergy Solutions Corp., 506 F.3d 209, 213 (3d Cir. 2007)).
“[T]his is not the right court to decide that an appeal is untimely and that a rule
such as the ‘mailbox’ rule applies to make Petitioner’s notice of appeal timely.” Laborin
v. Clark, No. 2:08-cv-1998, 2011 WL 6102114, at *2 (E.D. Cal. Dec. 8, 2011)
(unpublished). The Court of Appeals, rather than the district court, has that
responsibility. Id.; see also Hobson v. Campbell, No. C 07-5832 SI, 2009 WL 3711926,
at *2 (N.D. Cal. Nov. 5, 2009) (unpublished) (“Notwithstanding the fact that it is too late
to obtain any relief from the deadline to file a notice of appeal, this is not the right court
to decide that the appeal is untimely. It is the responsibility of the court of appeals
rather than the district court to determine the existence or scope of appellate jurisdiction
over an appeal and to dispose of deficient appeals.”) The Court therefore DENIES
Petitioner’s “Motion for Mistakes, Inadvertence, Excusable Neglect, [and] Newly
Discovered Evidence” (dkt. #35) and his “Pleading for Mistake, Inadvertence, Excusable
Neglect, [and] New Discovered Evidence” (dkt. #36).
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: July 11, 2013
3
The undersigned certifies that a copy of this
document was served on the attorneys of
record and Alfonzo Newell by electronic
means or U.S. Mail on July 11, 2013.
S/Linda Vertriest
Deputy Clerk
4
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