TURNER v. CHIESA et al
OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 1/29/16. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 12-5224 (JBS)
JEFFREY CHIESA, et al.,
JUAN TURNER, #639531C
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
Petitioner Pro Se
ESSEX COUNTY PROSECUTOR
by: Lucille M. Rosano, Esq.
50 West Market Street
Newark, New Jersey 07102
Attorneys for Respondents
SIMANDLE, Chief Judge
Juan Turner filed a Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 2254 challenging a judgment of conviction
filed in the Superior Court of New Jersey, Law Division, Essex
County, on September 27, 2004.
In an Order and accompanying
Opinion entered on August 31, 2015, this Court dismissed the
Petition with prejudice and denied a certificate of
Presently before this Court is Petitioner’s
motion to file a notice of appeal as within time.
issue presented is whether this Court may enlarge the time for
appeal in this civil case where the prisoner petitioner did not
receive the Court’s Order until 63 days after it was entered
through no fault of his own, and where he filed this motion to
permit the appeal 17 days after receiving the Order.
Unfortunately, such relief is precluded by 28 U.S.C. 2107(c) and
Fed. R. App. P. 4()(a)(6), and this Court must deny the motion.
By Opinion and Order entered on August 31, 2015, this Court
dismissed the § 2254 Petition and denied a certificate of
(ECF Nos. 29, 30.)
The Clerk mailed the Order
and Opinion to Petitioner at the address listed on the docket,
which included the correct name and prisoner identification
number and the correct prison and city (New Jersey State Prison
at Trenton) but the wrong zip code. 1
(ECF No. 31 at 7.)
Petitioner maintains that he did not receive the Court’s August
31, 2015, Order and Opinion until November 3, 2015.
(17) days later, on November 19, 2015, Petitioner signed and
Petitioner has been incarcerated at New Jersey State Prison in
Trenton, New Jersey, since he filed the Petition in 2012.
Although the zip code in the return address of the envelope
containing the Petition is the proper zip code of 08625, the
Clerk placed the zip code of 07101 on the docket.
presumably handed the following documents to prison officials
for mailing to the Clerk:
a motion for leave to file an appeal
as within time, a certification in support of motion, an
application for a certificate of appealability, certification of
service, and cover letter.
(ECF No. 31.)
In his certification
supporting the motion, Petitioner avers that for the past six
months prison officials have delayed or confiscated his incoming
He avers that “[o]n November 3, 2015, I received by mail
& signed for the opinion from the District Court denying my
Petition for Habeas Corpus dated August 31, 2015.”
(ECF No. 31
Attached to the certification is a receipt issued by an
official at New Jersey State Prison indicating that on November
3, 2015, the official delivered legal mail, dated or postmarked
October 31, 2015, from the United States District Court to
(ECF No. 31 at 10.)
A photocopy of this Court’s
original mailing envelope, however, bears the postage meter date
of mailing as August 31, 2015, the same date as when the Opinion
and Order were entered on the docket.
The cause for the two
month delay in delivery to Petitioner, from August 31, 2015 to
November 3, 2015, cannot be determined with certainty –— it may
be due to the misaddressed zip code, or to delay within the
Trenton State Prison, or both.
Petitioner asks this to grant
“leave to file Notice of Appeal As Within Time.”
(ECF No. 31 at
Section 2107(a) of Title 28 of the United States Code
establishes the time limit for filing a notice of appeal in a
“Except as otherwise provided in this section, no
appeal shall bring any judgment, order or decree in an action,
suit or proceeding of a civil nature before a court of appeals
for review unless notice of appeal is filed, within thirty days
after the entry of such judgment, order or decree.”
28 U.S.C. §
2107(a); see also Fed. R. App. P. 4(a)(1)(A) (“[T]he notice of
appeal . . . must be filed with the district clerk within 30
days after the judgment or order appealed from is entered”).
Section 2107(c) of the statute authorizes this Court, “upon
motion filed not later than 30 days after the expiration of the
time otherwise set for bringing appeal, [to] extend the time for
appeal upon a showing of excusable neglect or good cause.”
U.S.C. § 2107(c).
Consistent with § 2107(c), Appellate Rule
4(a)(5) authorizes this Court to extend the time to file a
notice of appeal if the party “so moves no later than 30 days
after the time prescribed by this Rule 4(a) expires” and the
party shows excusable neglect or good cause.
Fed. R. App. P.
4(a)(5)(A)(i) and (ii).
In this case, the Court may not extend
the time for Petitioner to file a notice of appeal under §
2107(c) and Appellate Rule 4(a)(5) because Petitioner did not
file the present motion within 60 days of the date the Clerk
entered the Order. 2
Section 2107(c) also permits this Court to reopen the time
for appeal for a period of 14 days, but only if the motion to
reopen the time to appeal is filed “within 180 days after entry
of the judgment or order or within 14 days after receipt of such
28 U.S.C. § 2107(c). 3
notice, whichever is earlier[.]”
Consistent with § 2107(c), Appellate Rule 4(a)(6) provides:
As this Court’s Order dismissing the Petition was a document
separate from its Opinion, the Order was entered for the
purposes of Appellate Rule 4 on August 31, 2015. See Fed. R.
App. P. 4(a)(7)(A)(ii). The 30-day time limit to appeal under §
2107(a) and Appellate Rule 4(a)(1)(A) expired on September 30,
2015. The additional 30-day limit of § 2107(c) and Appellate
Rule 4(a)(5)(A)(i) for Petitioner to file his motion to extend
the time for appeal expired on October 30, 2015, but Petitioner
did not hand his motion to prison officials for mailing to the
Clerk until November 19, 2015.
Section 2107(c) authorizes a court to reopen the time to appeal
[I]f the district court finds—
(1) that a party entitled to notice of the entry of a
judgment or order did not receive such notice from the
clerk or any party within 21 days of its entry, and
(6) Reopening the Time to File an Appeal. 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
(C) the court finds that no party would be prejudiced.
Fed. R. App. P. 4(a)(6).
Binding precedent construing § 2107(c)
and Appellate Rule 4(a)(6) indicates that the 14-day period at
issue here is jurisdictional and cannot be enlarged.
(2) that no party would be prejudiced,
the district court may, upon motion filed within 180
days after entry of the judgment or order or within 14
days after receipt of such notice, whichever is
earlier, reopen the time for appeal for a period of 14
days from the date of entry of the order reopening the
time for appeal.
28 U.S.C. § 2107(c).
In Bowles v. Russell, 551 U.S. 205 (2007), Bowles filed a
motion on December 12, 2003, to reopen the time to appeal an
order denying his habeas petition.
On February 10, 2004, the
District Court granted the motion and extended the time to
appeal for 17 days.
Bowles filed his notice of appeal on
February 26, 2004 – within the 17 days permitted by the District
Court’s order, but after the 14-day period allowed by § 2107(c)
and Appellate Rule 4(a)(6) had expired.
The Supreme Court held
that the time limits set forth in § 2107(c) and Appellate Rule 4
are jurisdictional and “Bowles’ failure to file his notice of
appeal in accordance with the statute therefore deprived the
Court of Appeals of jurisdiction.”
Id. at 213.
the Court held that because the timely filing of a notice of
appeal in a civil case is a jurisdictional requirement, courts
have “no authority to create equitable exceptions” to the limits
set forth in § 2107(c).
Id. at 214.
The Third Circuit applied Bowles in Baker v. United States,
670 F.3d 448 (3d Cir. 2012).
In Baker, the District Court
dismissed Baker’s case for personal injuries against prison
officials on July 11, 2006.
Although Baker had notified the
Clerk that he had been moved from FCI Lisbon to USP Lewisburg by
letter dated December 28, 2005, the Clerk failed to docket the
letter or enter the address change on the docket until February
Accordingly, the Clerk mailed the July 11, 2006, order
of dismissal to Baker at the wrong prison.
On January 31, 2007,
Baker sent a letter to the District Court explaining that he
found out that the court had dismissed his case when he obtained
a copy of the docket sheet; he asked the Clerk’s Office to send
him the order, but the office didn’t send him the order until
January 7, 2008.
Without a copy of the order, on May 31, 2007,
323 days after entry of the dismissal order and well beyond the
180-day outer limit imposed by § 2107(c), Baker filed a motion
which the court construed as a motion to reopen the time to file
Baker argued that the court should apply Houston v.
Lack, 487 U.S. 266, 276 (1988), wherein the Supreme Court deemed
a notice of appeal to be “filed” at the time petitioner
delivered it to the prison authorities for forwarding to the
He argued that
the Third Circuit should deem the
dismissal order to be “entered” on the date he received the
order, i.e., January 7, 2008.
The Third Circuit held that “Baker’s failure to comply with
the requirement that his motion to reopen be filed within the
earlier of 180 days after the judgment or order is entered, or
within  days after his receipt of notice of the Dismissal
Order was fatal” to his motion.
Baker, 670 F.3d at 456.
Third Circuit further held that it could not exclude the time
allegedly attributable to delays caused by prison officials by
construing “entry” under § 2107 and Appellate Rule 4(a)(6) to
mean the date Baker received the order.
The Third Circuit
reasoned that, if the court construed “entry” as “receipt,”
then “[n]o pro se prisoner would ever run up against [the 180day] limit because the earlier of the two situations listed
above would always be fourteen days after receipt of notice of
the order, and no pro se prisoner would ever reach 180 days
before the 14-day period expired.”
Id. at 458.
The holdings in Bowles and Baker preclude this Court from
granting Petitioner’s motion.
was entered on August 31, 2015.
The Order dismissing the Petition
The 180-day from entry limit
under Appellate Rule 4(a)(6)(B) will not end until February 27,
2016, but unfortunately the 14 days from receipt limit expired
on November 17, 2015, 14 days after Petitioner received the
Order on November 3, 2015.
Since § 2107(c) and Appellate Rule
4(a)(6)(B) required Petitioner’s motion to be filed by the
earlier date of November 17, 2015, the motion is untimely by two
days, as Petitioner did not hand it to prison officials for
mailing to the Clerk until November 19, 2015.
motion is untimely under § 2701(c) and Appellate Rule
4(a)(6)(B), this Court lacks jurisdiction to reopen the time for
Petitioner to file an appeal.
Baker, 670 F.3d at 455-58.
See Bowles, 551 U.S. 210-14;
Thus, the window for filing this
motion to reopen the time for appeal, which was open by statute
for 14 days after he received the final order, closed again two
days before he submitted this motion.
This Court lacks
jurisdiction to reopen that window again, even where the
original mailing to the Petitioner was delayed by an error in
the address or delay within the prison.
The Court will deny Petitioner’s motion.
Order accompanies this Opinion.
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
Dated: January 29, 2016
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