Birmingham v. Pash

Filing 20

ORDER (1) DENYING PETITIONER'S SECOND FORMAL REQUEST FOR A CERTIFICATE OF APPEALABILITY, (2) CONSTRUING REQUEST AS MOTION TO REOPEN TIME TO FILE APPEAL, AND (3) DENYING PETITIONERS REQUEST TO REOPEN TIME TO FILE APPEAL. Signed on 8/23/17 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea) Copy mailed on 8/23/2017 to Terry Birmingham, 1115 East Pence Road, Cameron MO 64429 (Houston, Kiambu).

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
TERRY BIRMINGHAM,
Petitioner,
vs.
RONDA J. PASH, Warden,
Crossroads Correctional Center,
Respondent.

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Case No. 16-00965-CV-W-ODS

ORDER (1) DENYING PETITIONER’S SECOND
FORMAL REQUEST FOR A CERTIFICATE OF APPEALABILITY,
(2) CONSTRUING REQUEST AS MOTION TO REOPEN TIME TO FILE APPEAL, AND
(3) DENYING PETITIONER’S REQUEST TO REOPEN TIME TO FILE APPEAL
On April 3, 2017, the Court denied Petitioner’s request for a writ of habeas
corpus, and denied the issuance of a certificate of appealability, finding Petitioner failed
to show a reasonable jurist would find the Court’s ruling on the constitutional claims
debatable or wrong. Doc. #14, at 13-14 (citations omitted). On June 19, 2017,
Petitioner filed a request for a certificate of appealability. Doc. #17. The Court denied
that motion, citing its April 3, 2017 Order. Doc. #18.
On August 9, 2017, Petitioner filed another request for a certificate of
appealability. Doc. #19.1 The Court denies Petitioner’s second request for a certificate
of appealability for the same reasons identified in its April 3, 2017 Order, but construes
Petitioner’s filing as a request to reopen the time to file an appeal.2
Pursuant to Rule 4(a) of the Federal Rules of Appellate Procedure, “[t]he 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 three requirements are met. Fed. R. App. P.
1

Petitioner sent his request to the Eighth Circuit Court of Appeals. Because Petitioner
has not appealed this Court’s decision, the Eighth Circuit sent Petitioner’s request to
this Court for filing and consideration. Doc. #19-2.
2
To the extent Petitioner’s first request for certificate of appealability could have been
construed as a motion to reopen the time to file an appeal, such a request is denied for
the same reasons his second request for certificate of appealability (construed as a
motion to reopen) is denied.

4(a)(6). The first of the three requirements has not been met by Petitioner in that he
has not established he did not receive notice of the Court’s April 3, 2017 Order within
twenty-one days after it was entered. Fed. R. App. P. 4(a)(6)(A). Tellingly, Petitioner
mentions the Court’s April 3, 2017 Order in his filing received by the Court on June 19,
2017, which indicates Petitioner received notice of the Court’s Order. Doc. #17.
Because Petitioner has failed to establish the requirements set forth in Rule 4(a)(6)(A)(C), the Court denies Petitioner’s request to reopen the time to file an appeal.
The Clerk of the Court is directed to mail a copy of this Order to the following:
Terry Birmingham, #501767
Crossroads Correctional Center 4D-157
1115 East Pence Road
Cameron, Missouri 64429
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: August 23, 2017

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