Anderson v. Winn

Filing 35

ORDER GRANTING Motion to Reopen Time for Filing Notice of Appeal re 30 Notice of Appeal filed by Steven B. Anderson. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
2:18-CV-11133-TGB-APP

STEVEN B. ANDERSON,
Petitioner,
vs.

HON. TERRENCE G. BERG
ORDER GRANTING MOTION
TO REOPEN TIME FOR
FILING NOTICE OF APPEAL

THOMAS WINN,
Respondent.

This case is before the Court on remand from the Sixth Circuit
Court of Appeals. By order dated June 2, 2023, the Sixth Circuit ordered
that Petitioner’s notice of appeal be construed as a motion to reopen the
time to file an appeal, held the appeal in abeyance, and directed this
Court to consider the motion. ECF No. 34.
I.

BACKGROUND

The Court denied habeas relief in this 28 U.S.C. § 2254 case on
April 30, 2019. ECF No. 13. Petitioner appealed, and the Sixth Circuit
denied a certificate of appealability. ECF No. 20.
In July 2022, Petitioner filed a motion for recusal and a motion for
relief from judgment. ECF Nos. 24, 25. On January 30, 2023, the Court
denied the motions. ECF No. 28. The Order denying the motions was

mailed to Petitioner the same day to his address of record at the Oaks
Correctional Facility. See Jan. 30, 2023 Docket Entry.
On April 11, 2023, the copy of the Order was returned by the
Michigan Department of Corrections because Petitioner was no longer
incarcerated at the Oaks Correctional Facility, and the time for
forwarding mail had expired. ECF No. 29. That same day, the Court, on
its own initiative, ascertained Petitioner’s new facility and mailed him
the January 30, 2023 Order a second time. See Apr. 11, 2023 Docket
Entry.
On May 8, 2023, Petitioner filed a notice of appeal, explaining that
he had not received the Order denying relief from the judgment until
April 19, 2023. ECF No. 30. The notice of appeal is unsigned and undated,
but it is postmarked May 2, 2023, 13 days after Petitioner claims he
received the Order. Id.
II.

LEGAL STANDARD

Rule 4(a)(1) of the Federal Rules of Appellate Procedure provides
that a notice of appeal “must be filed with the district clerk within 30
days after entry of the judgment or order appealed from.” This time limit
is mandatory and jurisdictional. Browder v. Dir., Dep’t of Corr. Ill., 434
U.S. 257, 264 (1978). The failure of an appellant to timely file a notice of
appeal deprives an appellate court of jurisdiction. Rhoden v. Campbell,
153 F. 3d 773, 774 (6th Cir. 1998).
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A party asserting excusable neglect or good cause, however, may
seek to extend the time limit if it files a motion for extension of time
within 30 days of the time for filing a notice of appeal. See Fed. R. App.
P. 4(a)(5); Zack v. United States, 133 F.3d 451, 453 (6th Cir. 1998).
Petitioner’s late notice of appeal, construed by the Sixth Circuit as a
motion to reopen the time for filing a notice of appeal, was filed beyond
the 30-day deadline. The time for filing a notice of appeal, therefore, may
not be extended under Rule 4(a)(5)(A).
Federal Rule of Appellate Procedure 4(a)(6), however, provides that
where a party does not receive notice of a judgment in accordance with
Federal Rule of Civil Procedure 77(d), the district court may reopen the
time to file an appeal if the motion to reopen is filed within 180 days after
the judgment is entered, or within 14 days after the party receives notice,
whichever is earlier.
Rule 4(a)(6) is the exclusive remedy for reopening the time to file
an appeal. Bowles v. Russell, 432 F.3d 668, 672–73 (6th Cir. 2005), aff’d,
551 U.S. 205 (2007). District court rulings on Rule 60(b)(6) motions are
reviewed for abuse of discretion. Browder, 434 U.S. at 263 n.7; Kuhn v.
Sulzer Orthopedics, Inc., 498 F.3d 365, 370 (6th Cir. 2007).
III. DISCUSSION
Here, the Court will exercise its discretion to grant the motion for
reopening the time for filing the notice of appeal. Petitioner claims he did
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not receive actual notice of the January 30, 2023 Order he wishes to
appeal until April 19, 2023. The docket reflects that the Court’s Order
was returned as undeliverable. ECF No. 28. Petitioner filed his motion to
reopen within 14 days of receiving actual notice, as required by Federal
Rule of Appellate Procedure 4(a)(6).
The Court recognizes that Petitioner’s failure to notify the Court of
his change of address is the reason that he did not receive timely notice
of the order. Early in this case, just after Petitioner filed his habeas
petition, the Court sent him notice of his continuing obligation to
promptly notify the Court of any change of address, as required by
Eastern District of Michigan Local Rule 11.2. This notice included the
warning that failure to file a change of address could result in dismissal
of the case. ECF No. 3. This same notice of Petitioner’s responsibility to
inform the Court of address changes was again sent to Petitioner when
the Court remailed the order to his new address.
Given the unusual circumstances here, the Court will also mail
Petitioner a copy of this Order at his new address. Petitioner is
admonished that in accordance with this district’s Local Rules, he must
file a notice of change of address to ensure that he receives timely notice
of other filings.

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Because Respondent has not opposed Petitioner’s request to reopen
the case and Petitioner meets the requirements of Federal Rule of
Appellate Procedure 4(a)(6), the Court GRANTS the motion to reopen.
IV.

CONCLUSION

Accordingly, pursuant to the order of the Sixth Circuit Court of
Appeals remanding this case, Petitioner’s motion to reopen the time for
filing an appeal of the Court’s January 30, 2023, Order is GRANTED.
The Clerk of Court is respectfully directed to return this case to the
Sixth Circuit Court of Appeals for further proceedings.
IT IS SO ORDERED.
Dated: August 22, 2023

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

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