HARRIS v. STATE OF NEW JERSEY

Filing 5

OPINION filed. Signed by Judge Mary L. Cooper on 5/16/2011. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GOLDA D. HARRIS,
Petitioner,
v.
STATE OF NEW JERSEY,
Respondent.

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CIVIL ACTION NO. 10-175 (MLC)
O P I N I O N

THIS IS an action brought pursuant to 28 U.S.C. § 2254.
(Dkt. entry no. 1, Petition.)

On March 11, 2010, the Court (1)

dismissed the petition, and (2) explicitly declined to issue a
certificate of appealability (“March Order”).

(Dkt. entry no. 3,

3-11-10 Order; dkt. entry no. 2, 3-11-10 Op.)

In papers dated

both October 26, 2010, and October 28, 2010, and received by the
Clerk’s Office on December 1, 2010, the petitioner files a
“request for certificate of appealability” (“Request”).

(Dkt.

entry no. 4, Letter Br. at 1; dkt. entry no. 4, Certified Stmt.)
The plaintiff is:
requesting to file this . . . out of time. It is late
due to: 1) Not receiving my property back from the
prison until 5-11-10 in complete disarray and confusion;
2) No ink pen or paper until 5-28-10 and/or 6-3-10 and
3) I was hospitalized 3-7-10 through 3-20-10 and again
on 4-8-10 through 4-23-10 . . . and hospitalized again
from 7-7-10 - 8-9-10.
(Letter Br. at 1.)

IF THE REQUEST is indeed a request for a certificiate of
appealability, then it is denied as moot.
declined to issue one.

The Court has already

(See 3-11-10 Order.)

IF THE REQUEST is actually a motion for reconsideration,
then it is denied.

There is a well-settled standard for deciding

a motion for reconsideration.

See Beety-Monticelli v. Comm’r of

Soc. Sec., 343 Fed.Appx. 743, 747 (3d Cir. 2009); Max’s Seafood
Cafe v. Quinteros, 176 F.3d 669, 677-78 (3d Cir. 1999).
Court has carefully reviewed the petitioner’s arguments.

The
The

petitioner (1) has not established that facts or controlling
legal authority were overlooked by the Court, (2) is merely
asserting her disagreement with the March Order, and (3) in any
event, has sought this relief in a significantly untimely
fashion, as the Local Civil Rules provide 14 days from entry of
the March Order to so move.

See L.Civ.R. 7.1(i).

IT APPEARS that the petitioner, at this juncture, was
required to request a certificate of appealability directly from
the Third Circuit Court of Appeals.

See 28 U.S.C. § 2253(c)(1);

Fed.R.App.P. 22(b)(1) (stating that if district court denies
certificate of appealability, then petitioner may request same of
circuit court); Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d
Cir. 2004); Coady v. Vaughn, 251 F.3d 480, 486-87 (3d Cir. 2001).
PERHAPS THE REQUEST can be viewed as a request for leave to
seek an untimely certificate of appealability from the Court of
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Appeals, and perhaps the Court should apply Federal Rule of
Appellate Procedure 4(a) and 28 U.S.C. § 2107(c).

See Weaver v.

Larkins, No. 97-61, 1999 WL 79054, at *2 n.1 (E.D. Pa. Feb. 8,
1999) (suggesting same).

The Request must still be denied.

A NOTICE OF APPEAL “must be filed with the district clerk
within 30 days after the judgment or order appealed from is
entered”.

Fed.R.App.P. 4(a)(1)(A).

When “an inmate confined in

an institution” is involved, then the date of filing is construed
to be the date the notice of appeal “is deposited in the
institution’s internal mail system”.

Fed.R.App.P. 4(c)(1).

Using the deadlines provided in this appellate rule, the
petitioner had until April 12, 2010, to deposit the Request in
the mail system.1

The petitioner did not do so.

HOWEVER:
The district court may extend the time to file a notice
of appeal if:
(i) a party so moves no later than 30 days after
the time prescribed by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed
before or during the 30 days after the time prescribed
by this Rule 4(a) expires, that party shows excusable
neglect or good cause.
Fed.R.App.P. 4(a)(5)(A).

Using the deadlines provided in this

appellate rule, and assuming that the second 30-day period ran
from April 12, 2010, the second 30-day period expired here on May

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The thirtieth day was on April 10, 2010, which was a
Saturday. Thus, the operative date is Monday, April 12, 2010.
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12, 2010.

Thus, the Request — even using the earliest date

contained in the Request, which is October 26, 2010 — is
untimely.

An analysis of whether the petitioner has shown

excusable neglect or good cause is not necessary.
IN ADDITION:
The district court may reopen the time to file an appeal
. . . 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 earlier; and
(C) the court finds that no party would be prejudiced.
Fed.R.App.P. 4(a)(6).

Using the generous 180-day period, the

petitioner’s time expired on September 7, 2010, which is almost
two months before the earliest date in the Request.
THERE IS no equitable tolling to consider here.
v. Russell, 551 U.S. 205, 206, 214 (2007).
denied.

See Bowles

The Request will be

The Court will issue an appropriate order.

s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated:

May 16, 2011

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