WYNN v. UNITED STATES

Filing 23

OPINION. Signed by Judge Kevin McNulty on 2/20/15. (DD, )

UNITE!) STATES DISTRICT COURT
I)ISTRICT OF NEW JERSEY

DAVID J. WYNN,
Petitioner,

Civ. No. 12-6694 (KM)
OPINION

V.

UNITED STATES,
Respondent.

KEVIN MCNULTY. U.S.D.J.

Petitioner, David J. Wynn, is a former federal prisoner who is proceeding in this action
with what this Court construed as a second petition for writ of error corarn nob is. The lengthy
procedural history of this case was discussed in detail in the Court’s December 15, 2014
Opinion, with which I assume familiarity. (See Dkt. No. 20.)
In the December 15, 2014 Opinion, this Court considered Mr. Wynn’s second coram
nobis petition (received by the Court on July 16, 2014). I found that it was not a notice of appeal
of Judge Cavanaugh’s denial of his original corarn nohis petition, despite my earlier invitation to
file such a notice. Consideration of it as a
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§ 2255

motion I found futile, because it would be well

beyond the one year statute of limitations. Finally, I noted that Mr. Wynn, who was on
supervised release, was still “in custody” and therefore ineligible for coram nohis relief. (See
Dkt. No. 20 at p. 8.) Accordingly, on December 15, 2014, I summarily dismissed Mr. Wynn’s
second corarn nobis petition and denied a certificate of appealability to the extent it could be
considered a motion under 28 U.S.C.

§ 2255.

This matter was reassigned to me on June 5, 2014, by Chief Judge Simandle in light of Judge
Cavanaugh’s retirement.

On February 9, 2015, this Court received a filing by Mr. Wynn that he has titled “Petition
for Writ of Certiorari.” (Dkt. No. 22.) The filing is addressed to Judge Cavanaugh. Mr. Wynn
requests that this Court “honor movant’s request for the Supreme Court to examine this case.”
(Id. atp.2.)

Considered as a petition for a writ of certiorari to the United States Supreme Court, thjis
filing would be both premature and directed to the wrong Court. The February 9, 2015 Petition,
however, could be construed as Mr. Wynn’s inartful attempt to appeal my I)ecemher 15, 2014
Opinion and Order. Federal Rule of Appellate Procedure 3(c) states that a notice of appeal must,
at a minimum, “designate the judgment, order, or part thereof being appealed.” The requirements
of Rule 3(c) are to be liberally construed, see Pacitli v. Macy’s, 193 F.3d 766, 776-77 (3d Cir.
1999), particularly where plaintiff is appearingpro Se. What is clear is that Mr. Wynn objects to
my order and wishes to have a higher court review his case. 1-le filed his Petition timely, within
sixty days of this Court’s December 15, 2014 Opinion and Order. See FED. R. App. P. 4(a)(B)(i)
(notice of appeal may be filed by party within sixty days if one of the parties is the United
States). Under those circumstances, and in light of the procedural history of this case, I will
construe the “petition fbr certiorari” as a notice of appeal and will order the Clerk to re-designate
it as such. An appropriate order will be entered.
Dated: February 20, 2015

/J
KEVIN MCNULTY(J
United States District Judge

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