Simpson v. Rivard

Filing 21

OPINION AND ORDER Denying 20 Petitioner's Motion for Relief From Judgment. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT DESHAWN SIMPSON,
Case Number: 2:11-CV-11758

Petitioner,

HONORABLE DENISE PAGE HOOD

v.
STEVEN RIVARD,
Respondent.
/

OPINION AND ORDER DENYING PETITIONER’S
MOTION FOR RELIEF FROM JUDGMENT
This matter is before the Court on Petitioner Robert DeShawn Simpson’s Motion
for Relief from Judgment filed pursuant to Federal Rule of Civil Procedure 60(b)(6). The
motion concerns the Court’s denial of habeas relief in November 2013 and his subsequent
failure to timely file a notice of appeal or seek an extension of time to file a late appeal
within the prescribed time for dong so.
Petitioner seeks relief from judgment pursuant to Federal Rule of Civil Procedure
60(b). Under that Rule, a district court may grant relief from a final judgment or order
only upon a showing of one of the following reasons: (1) mistake, inadvertence, surprise,
or excusable neglect; (2) newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether
heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of
an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released,

or discharged, or a prior judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the operation of the judgment.
Fed. R. Civ. P. 60(b). Petitioner relies upon Rule 60(b)(6). “Rule 60(b)(6) should apply
only in exceptional or extraordinary circumstances which are not addressed by the first
five numbered clauses of the Rule.” Olle v. Henry & Wright Corporation, 910 F.2d 357,
365 (6th Cir. 1990) (quotation omitted). It is invoked only in those “unusual and extreme
situations where principles of equity mandate relief.” Id. (emphasis in original). Rule
60(b)(6) exists to allow courts to vacate judgments whenever such action is appropriate to
accomplish justice in extraordinary circumstances. Klapprott v. United States, 335 U.S.
601, 614-15 (1949).
Petitioner seeks to have the Court re-issue its order denying habeas relief in order
to reinstate the time for filing a notice of appeal. Petitioner is not entitled to relief from
judgment in this case. Rule 4(a) of the Federal Rules of Appellate Procedure requires that
a notice of appeal in a civil case be filed with the district court “within 30 days after the
entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). Petitioner
failed to comply with that time limit. Rule 4(a) allows a district court to 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
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excusable neglect or good cause.
Fed. R. App. P. 4(a)(5). Petitioner did not file a motion to extend the time to file a notice
of appeal.1
Rule 4(a)’s time limits are codified by statute, see 28 U.S.C. § 2107(a), and,
therefore, are “mandatory and jurisdictional.” See Bowles v. Russell, 551 U.S. 205, 209,
(2007) (citing cases and explaining that federal appellate courts “routinely and uniformly
dismiss untimely appeals for lack of jurisdiction”). Because Rule 4(a) is jurisdictional,
Rule 60(b) may not be used to circumvent its time requirements and extend or re-open the

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Rule 4(a) also provides that a district court may reopen the time to appeal in
limited circumstances:
The district court may reopen the time to file an appeal for a period of 14
days after the date when its order to reopen is entered, but only if all the
following conditions are satisfied:
(A) 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;
(B) 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
(C) the court finds that no party would be prejudiced.
Fed. R. App. P. 4(a)(6). Petitioner does not claim that he failed to receive notice of the
Court’s decision denying habeas relief nor has he filed this motion within 180 days after
the denial of habeas relief. Consequently, this provision is inapplicable.
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time for filing a notice of appeal. See Hall v. Scutt, 482 F. App’x 990, 991 (6th Cir.
2012); Farner v. Workman, 302 F. App’x 762, 764-65 (10th Cir. 2008). The Court,
therefore, concludes that it may not grant relief under Rule 60(b)(6) in order to allow
Petitioner to escape Rule 4's time limits for filing a notice of appeal.
Accordingly, the Court DENIES Petitioner’s Motion for Relief from Judgment
(dkt. # 20).
SO ORDERED.

S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: January 21, 2015
I hereby certify that a copy of the foregoing document was served upon counsel of record
on January 21, 2015, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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