MILLER v. CATHEL et al
OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 2/28/17. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
No. 06-6116 (JBS)
RONALD CATHEL, et al.,
Warren Miller, Petitioner pro se
East Jersey State Prison
Lock Bag R
Rahway, New Jersey 07065
SIMANDLE, Chief Judge:
This Court denied Petitioner Warren Miller’s second amended
petition for a writ of habeas corpus, filed pursuant to 28
U.S.C. § 2254, on September 9, 2016. Opinion and Order, Docket
Entries 30-31. Petitioner filed a “Motion to file an out of time
Certificate of Appealability” on February 7, 2017. Motion,
Docket Entry 32. Respondent Ronald Cathel has not filed
opposition to the motion. For the reasons stated herein, the
motion is denied.
Petitioner filed a petition for writ of habeas corpus on
November 19, 2006 challenging his convictions for aggravated
manslaughter, possession of a weapon for an unlawful purpose,
and unlawful possession of a weapon. The Court stayed the
petition on February 21, 2008 after Petitioner requested
permission to return to the New Jersey state courts to exhaust
other claims. Petitioner moved to reopen his habeas proceedings
on June 7, 2012, and the Court granted the motion and directed
Petitioner to file a second amended petition containing all of
the grounds he wished the Court to consider. The Second Amended
Petition was filed on September 20, 2013, Docket Entry 21, and
Respondent’s answer was filed on February 28, 2014, Docket
Entries 24 and 25. Petitioner submitted a traverse on May 5,
2014. Docket Entry 27. The Court concluded Petitioner’s claims
were either procedurally defaulted or meritless and denied the
petition on September 9, 2016. The Court denied a certificate of
On February 7, 2017, Petitioner filed a motion titled
“Motion to file an out of time Certificate of Appealability” and
a notice of appeal.1 He states he “failed to file a timely notice
of appeal as he believed that the District Court’s order
1 See Miller v. Administrator New Jersey State Prison, No. 171304 (3d Cir. filed Feb. 7, 2017).
denying/dismissing his [habeas petition] was final. In other
words, he believed that he had no other course of action.”
Petitioner’s Certification ¶ 3. He further indicates that “[i]t
wasn’t until [he] requested the assistance of the Prison’s Legal
Association (PLA) at the prison, that he learned for the first
time that he could appeal the District Court’s Order.” Id. ¶ 4.
He asks the Court to issue a certificate of appealability and
permit him “to filed his Notice of Motion to proceed within
time.” Id. ¶ 8. The Court construes this as a motion to reopen
the time in which to file an appeal pursuant to Federal Rule of
Appellate Procedure 4.
“[T]he taking of an appeal within the prescribed time is
mandatory and jurisdictional.” Bowles v. Russell, 551 U.S. 205,
209 (2007) (internal citation and quotation marks omitted).
Petitioner was required to file a notice of appeal within 30
days after this Court’s Order was entered on September 9, 2016,
i.e., by October 11, 2016.2 Fed. R. App. P. 4(a)(1)(A).
Petitioner filed his notice of appeal on February 7, 2017,
almost four months after the last day on which Petitioner could
have filed a timely appeal.
2 October 9, 2016 was a Sunday and October 10, 2016 was a holiday
-- Columbus Day.. Fed. R. Civ. P. 6(a)(1)(C).
This Court may extend the time to appeal if Petitioner can
show good cause or excusable neglect for failing to file a
timely appeal. However, the Court may only do so if the motion
is made no later than 30 days after the normal appeal period.
Fed. R. App. P. 4(a)(5)(i)-(ii). Here, Petitioner did not file
this motion within the additional 30 day period. This Court
therefore lacks the authority to extend the time to appeal under
This Court also cannot reopen the time to appeal under Rule
4(a)(6). Under that provision, the Court may reopen the time to
appeal for 14 days if no party would be prejudiced, the motion
to reopen 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 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.” Fed. R. App. P.
4(a)(6)(A)-(C). Petitioner does not certify in his motion that
he did not receive notice of this Court’s order of dismissal
within 21 days after entry. Instead, he states that he was
merely unaware of his ability to appeal the Court’s decision
until he consulted with the PLA. Petitioner’s Certification ¶¶
3-4. Congress specifically limited district courts’ ability to
reopen the time for appeals, 28 U.S.C. § 2107(c), and Petitioner
has not met the requirements of that statute. The Court
therefore cannot reopen the time for appeal, and Petitioner’s
motion is therefore denied.
To the extent Petitioner requests a certificate of
appealability, that request is also denied. This Court denied a
certificate of appealability in its September 9 2016 Order and
Opinion, and there is no reason to reconsider that decision. The
present motion to reopen time to appeal presents a question
determined by clearly established statutory law governing the
time to appeal, the outcome of which is determined by the
calendar and is not reasonably subject to debate.
For the reasons stated above, Petitioner’s motion to reopen
the time to appeal and for a certificate of appealability is
denied. An accompanying Order will be entered.
February 28, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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