HATCH v. SUPERIOR COURT OF NEW JERSEY et al

Filing 26

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 5/1/17. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
WILLIE E. HATCH,
Civil Action
No. 15-2514 (JBS)

Petitioner,
v.

[Relates to:
Appeal No. 17-1338 (3d Cir.)]

NEW JERSEY SUPERIOR COURT, et
al.,
OPINION
Respondents.

APPEARANCES:
Willie E. Hatch, Petitioner pro se
408547/48971B
East Jersey State Prison
Lock Bag R
Rahway, New Jersey 07065
SIMANDLE, Chief Judge:
I.

INTRODUCTION
This Court dismissed Petitioner Willie E. Hatch’s amended

28 U.S.C. § 2254 petition for a writ of habeas corpus as timebarred on January 25, 2016. Dismissal Opinion and Order [Docket
Entries 11-12]. He filed a motion for reconsideration, which the
Court denied on March 23, 2016. Opinion and Order Denying
Reconsideration [Docket Entries 18-19].
Before the Court now is Petitioner’s motion to file an out
of time notice of appeal. Motion [Docket Entry 25]. For the
reasons stated herein, the motion is denied.

II.

BACKGROUND
Petitioner was tried before a jury and was convicted of

first-degree aggravated sexual assault, N.J. STAT. ANN. § 2C:14–
2(a); second-degree sexual assault, N.J. STAT. ANN. § 2C:14–2(c);
and second-degree child endangerment, N.J. STAT. ANN. § 2C:24–
4(a), for acts committed against his fourteen-year-old stepson.
See State v. W.H., No. A-0948-11, 2012 WL 6698694, at *1 (N.J.
Super. Ct. App. Div. Dec. 27, 2012). His direct appeal concluded
when the New Jersey Supreme Court denied certification on
January 20, 2009. State v. W.H., 963 A.2d 845 (N.J. 2009).
Petitioner filed a timely petition for post-conviction
relief (“PCR”) in the state courts. The PCR court denied the
petition without an evidentiary hearing on March 7, 2011, and
the Appellate Division affirmed that court’s judgment. W.H.,
supra, No. A-0948-11. The New Jersey Supreme Court denied
certification on June 28, 2013. State v. W.H., 67 A.3d 1192
(N.J. 2013). More than 20 months after exhaustion of his State
PCR remedies, Petitioner handed his § 2254 petition to prison
officials for mailing on March 14, 2015. Petition [Docket Entry
1 at 16].
Upon initial review of this petition, the Honorable Renée
Marie Bumb, U.S.D.J.,1 noted that on its face, it appeared the

1 This matter was reassigned to the undersigned on August 4,
2015.
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petition was untimely under the limitations period of 28 U.S.C.
§ 2244. Judge Bumb ordered Petitioner to submit a written
statement “asserting any basis upon which the statute of
limitations may properly be tolled or any facts establishing
that the statute of limitations did not expire on or before June
29, 2014[.]” May 11, 2015 Order [Docket Entry 3 at 2].
Petitioner did not comply with the order, and on June 12, 2015,
Judge Bumb administratively terminated the proceedings in order
to give Petitioner one final chance to submit a written
statement on timeliness. June 12, 2015 Order, Docket Entry 5.
Petitioner submitted an amended petition on July 15, 2015
arguing he could not file a timely habeas petition because he
was placed into administrative segregation for 280 days and he
“had no way of knowing time sequences [sic] of filing appeals.”
Amended Petition at 23. After reviewing the documents provided
by Petitioner in light of the applicable law, this Court
determined the petition was time-barred and that the facts did
not warrant the application of equitable tolling. The Court
therefore dismissed the petition as untimely under 28 U.S.C. §
2244(d)(1). Dismissal Opinion and Order filed January 26, 2016
[Docket Entries 11 & 12].
On February 5, 2016, the Court received a letter from
Petitioner objecting to the application of the statute of
limitations. February 5 Letter [Docket Entry 13]. On March 7,
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2016, the Court ordered the letter to be designated as a motion
for reconsideration and the case to be reopened for review of
the motion. [Docket Entry 14]. The Court subsequently received
two letters from Petitioner with attempted explanations as to
why his § 2254 petition was filed late. March 12 and 11, 2016
Letters [Docket Entries 15 and 16]. The Court denied the motion
for reconsideration on March 23, 2016. [Docket Entries 18 & 19].
More than ten months elapsed until February 10, 2017 when
Petitioner filed a notice of appeal [Docket Entry 22]. The
appeal was docketed as Hatch v. New Jersey Superior Court, No.
17-1338 (3d Cir. filed Feb. 14, 2017) [Docket Entry 23].
On March 27, 2017, the Third Circuit transferred
Petitioner’s motion to file an out of time notice of appeal to
this Court, and the Court reopened the matter for consideration
of the motion [Docket Entries 24 & 25]. Petitioner states he is
“a layman in the law and [has] absolutely no familiarity with
the Rules of Court and any procedure associated with appealing
the denial of [his] 28 U.S.C. Sec. 2254 petition.” Motion ¶ 2.
He argues “[t]he district court erred in denying [his] habeas
petition and deeming it untimely. It failed to consider
equittable [sic] tolling principles.” Id. ¶ 4.
III. DISCUSSION
“[T]he taking of an appeal within the prescribed time is
mandatory and jurisdictional.” Bowles v. Russell, 551 U.S. 205,
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209 (2007) (internal citation and quotation marks omitted).
Petitioner was required to file a notice of appeal within 30
days after this Court denied the motion to reconsideration on
March 23, 2016, i.e., by April 22, 2016. Fed. R. App. P.
4(a)(1)(A). Petitioner filed his notice of appeal on February
10, 2017, ten months after the last day on which Petitioner
could have filed a timely appeal.
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)(A). Here, Petitioner did not file this
motion within the additional 30-day period that expired May 22,
2016. This Court therefore lacks the authority to extend the
time to appeal under Rule 4(a)(5).
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
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be appealed within 21 days after entry.” Fed. R. App. P.
4(a)(6)(A)-(C).
The instant motion was filed more than 180 days after the
motion for reconsideration was denied. Petitioner also does not
certify in his motion that he did not receive notice of the
denial of the motion for reconsideration within 21 days after
its entry.2 Instead, he merely asserts he was not familiar with
the appellate process. Motion ¶ 2. 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 lacks jurisdiction to reopen
the time for appeal, and Petitioner’s motion is denied.

2 Because of the passage of more than 180 days after entry of the
Order Denying Reconsideration (entered Mar. 24, 2016) and prior
to Petitioner filing his Notice of Appeal on February 10, 2017,
the date of Petitioner’s receipt of the order Denying
Reconsideration does not matter for purposes of Fed. R. App. P.
4(a)(6). The Order Denying Reconsideration directed the Clerk of
Court to “serve a copy of this Opinion and Order upon Petitioner
by ordinary mail” (Docket Entry 19 at p.2), which was done
according to the docket’s internal receipt noting Petitioner’s
name and mailing address for service of the Opinion and Order.
Furthermore, Petitioner composed a strenuous letter to the Court
dated March 29, 2016 [Docket Entry 20, filed Apr. 11, 2016],
criticizing the Court for “constru[ing] a judgment for a
convenient denial” and for not convening an evidentiary hearing
[Docket Item 20 at p.1], suggesting Petitioner had received the
mailing of the March 24, 2016 Opinion and Order Denying
Reconsideration and was reacting to it.
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IV.

CONCLUSION
For the reasons stated above, Petitioner’s motion to reopen

the time to appeal is denied. An accompanying Order will be
entered.

May 1, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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