King v. People of the State of New York

Filing 16

ORDER. For the reasons provided in the annexed order, petitioner is barred from moving to reopen the time to appeal the order and judgment denying his habeas petition. The motion to reopen 15 is DENIED. The Clerk of Court is respectfully directed to serve a copy of this order on the pro se petitioner and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 3/16/2016. (Jacobson, Jonathan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
RONALD KING,

MEMORANDUM & ORDER
Petitioner,

11-CV-3810 (KAM)

-againstPEOPLE OF THE STATE OF NEW YORK,
Respondent.
--------------------------------------X
MATSUMOTO, United States District Judge:
This court denied pro se petitioner Ronald King’s habeas
corpus petition in December 2014. Nearly a year after the judgment
issued and the window for petitioner to file a timely notice of
appeal closed, he brought this motion in December 2015 requesting
that the court vacate and reissue the judgment to permit him to
file a timely appeal.

For the reasons stated herein, petitioner’s

motion is DENIED.
BACKGROUND
On August 4, 2011, petitioner filed a habeas petition
under 28 U.S.C. § 2254.

(See ECF No. 1.)

this court denied the petition.

On December 31, 2014,

(See ECF No. 12.)

On January 5,

2015, a judgment was entered in favor of the respondent.
13.)

(ECF No.

Although the docket reflects that the order and judgment (as

well as an appeals packet) were initially returned to the court as
undeliverable on February 23, 2015, the Clerk of Court subsequently

received an updated address and mailed another copy of the same
documents to petitioner on February 24, 2015. There was no further
activity on the docket until December 4, 2015, when petitioner
filed this motion requesting that the court vacate and reissue the
judgment in this case to permit him to file a timely appeal. 1

(See

ECF No. 15, Petitioner’s Motion to Vacate, Set Aside or Correct
Sentence (“Pet. Mot.”).) Petitioner alleges that he never received
the order or judgment denying his writ of habeas corpus.
Ex. A.)

(Id.,

Because he never received notice of the denial of his

petition, he claims, he failed to timely appeal the order and
judgment.

(Id.)

He therefore seeks a vacatur and reissuance of

the judgment to permit him to timely appeal.

(See Pet. Mot. at

13.)
DISCUSSION
The

court

treats

petitioner’s

motion,

styled

as

a

petition under 28 U.S.C. § 2255, 2 as a motion to reopen the time
to file an appeal under Federal Rule of Appellate Procedure 4

1

Although petitioner’s motion was filed with the Clerk of Court on
December 10, 2015, under the “mailbox rule” the court deems it filed on
December 4, 2015, the date he affirms he delivered it to prison
authorities for mailing.
See Houston v. Lack, 487 U.S. 266, 271-72
(1988) (holding that a pro se prisoner’s notice of appeal is filed when
the prisoner delivers it to prison authorities for forwarding to the
court clerk).
2 Although petitioner’s underlying conviction was in state court (see
ECF No. 1), he apparently filed his petition under 28 U.S.C. § 2255
because the decision denying his habeas petition was issued in federal
court. (See Pet. Mot. at 5 (“I did not raise this issue because the
Error occurred afterward in the Federal Court.”).)

2

(“Rule 4”).

See Cordon v. Greiner, 274 F. Supp. 2d 434, 439

(S.D.N.Y. 2003) (“Where a pro se litigant submits a late notice of
appeal and alleges that he did not receive notice of the entry of
the judgment or order from which he seeks to appeal within 21 days
of its entry, that notice should be treated as a motion to reopen
the time to file an appeal . . . .”).
Rule 4(a)(1) requires a party in a civil case to file a
notice

of

appeal

within

30

days

after

judgment

is

entered.

However, as relevant here, another provision — Rule 4(a)(6) —
establishes an exception.

Rule 4(a)(6) provides:

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 earlier; and
(C) the court finds that no party would be prejudiced.
Rule 4(a)(6) (emphasis added).
Rule

4(a)(6)’s

jurisdictional.”

time

periods

are

“mandatory

and

Bowles v. Russell, 551 U.S. 205, 209 (2007);

Mackey v. Hoffman, 682 F.3d 1247, 1253 (9th Cir. 2012) (“[T]he
time

periods

prescribed

by

Rule

3

4(a)(6)

are

mandatory

and

jurisdictional.” (internal quotation marks and citation omitted)).
Thus, a court may not consider a motion to extend the time to file
an appeal outside of the 180-day time limitation prescribed by
Rule 4(a)(6).

See Ryan v. First Unum Life Ins. Co., 174 F.3d 302,

305 (2d Cir. 1999) (“[Rule 4(a)(6)] provides an incentive for
parties to periodically inquire as to whether judgment has been
entered, since no motion to reopen the appeal period will be timely
if presented more than 180 days after entry, regardless of the
would-be appellant’s ignorance of the entry.”); Avolio v. County
of Suffolk, 29 F.3d 50, 54 (2d Cir. 1994) (recognizing the 180day time limit); Gibson v. Artus, No. 05-CV-3009, 2010 WL 517592,
at *2 (S.D.N.Y. Feb. 3, 2010) (“It appears to this Court that
Petitioner may not appeal from the Judgment because Rule 4(a)(6)
of the Federal Rules of Appellate Procedure establishes an outer
limit of 180 days to seek additional time to appeal.” (internal
quotation marks, alterations, and citation omitted)); see also
Advisory

Committee

Note

to

Rule

4(a)(6)

(“[Rule

4(a)(6)

establishes an outer time limit of 180 days for a party who fails
to receive timely notice of entry of a judgment to seek additional
time to appeal.”) 3

3

This court has also considered petitioner’s motion as seeking relief
from a final order, judgment, or proceeding under Federal Rule of Civil
Procedure 60(b)(6). The standard for granting Fed. R. Civ. P. 60(b)(6)
motions is strict, and requires petitioner to demonstrate “extraordinary
circumstances” to justify relief. See Gonzalez v. Crosby, 545 U.S. 524,
535 (2005). In this case, petitioner has not offered any evidence of
“extraordinary circumstances” for this court to consider. See Marquez

4

Here, petitioner’s request to reopen the time to appeal
the order denying him habeas corpus relief falls outside the 180day time limit established by Rule 4(a)(6).
case issued on January 5, 2015.

The judgment in this

(See ECF No. 13.)

Petitioner’s

deadline to file a timely appeal was therefore February 4, 2015.
Under Rule 4(a)(6), however, petitioner had 180 days from the date
of the judgment — or until July 4, 2015 - to seek to reopen the
time to file an appeal.

Petitioner did not file this motion until

December 4, 2015, well outside the 180-day window. (See Pet. Mot.)
The court is sympathetic to plaintiff’s allegation that he never
received the order or judgment. However, failure to receive notice
of an order or judgment does not constitute grounds to reopen the
time to file an appeal when that motion is not filed within 180
days of entry of the order or judgment.

See Ryan, 174 F.3d at 305

(“[Rule 4(a)(6)] provides an incentive for parties to periodically
inquire as to whether judgment has been entered, since no motion
to reopen the appeal period will be timely if presented more than
180 days after entry, regardless of the would-be appellant’s
ignorance of the entry.”)

v. Perlman, No. 03-CV-8643, 2012 WL 2895018, at *3 (S.D.N.Y. July 16,
2012) (finding that allegations of destroyed documents related to court
proceedings as well as lack of proof that copy of judgment was sent to
petitioner did not justify relief under Fed. R. Civ. P. 60(b)(6)). More
fundamentally, Fed. R. Civ. P. 60(b) “cannot be used to circumvent the
180-day limitation set forth in [Fed. R. App. P. 4(a)(6)].” Gibson, 2010
WL 517592, at *2 (quoting Vencor Hosps., Inc. v. Standard Life & Acc.
Ins. Co., 279 F.3d 1306, 1311 (11th Cir. 2002)).

5

Petitioner is therefore barred from moving to reopen the
time to appeal the order and judgment denying his habeas petition.
The motion to reopen is DENIED.
SO ORDERED.
Dated:

March 16, 2016
Brooklyn, New York
_____________/s/_____________
Kiyo A. Matsumoto
United States District Judge

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