Woolsey v. Mitzel

Filing 23

JUDGMENT: that the Court Accepts and Adopts the recommendations made by Magistrate Judge Peebles in the February 27, 2017 Report, Recommendation and Order dkt. # 11 ; that the 2 petition is Denied and Dismissed; that Petitioner's motion for r econsideration of the transfer order from the Eastern District of New York (Dkt. No. 8 ) is Denied as moot. The Court also finds that the petition presents no questions of substance for appellate review, and that the Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2); see Fed. R. App. P. 22(b). Accordingly, a certificate of appealability will not issue. That Respondents' motion to dismiss (Dkt. # 20 ) is Denied a s moot; and that Petitioner's motion for Leave to Proceed In Forma Pauperis in Support of the Application to Appoint Counsel (Dkt. # 21 ) is Denied as moot. All pursuant to the 22 Decision and Order of the Senior U.S. District Judge Thomas J. McAvoy dated May 22, 2017. (Copy of Judgment was served on pro se petitioner at 132 North Washington Street, Winchester, VA 22601 and pro se respondents at 295 Lucas Avenue, Kingston, NY 12401 via regular and certified mail on 05/22/2017.)(hmr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

JUDGMENT IN A CIVIL CASE
Jeanette Woolsey, on behalf
of R.M.R.,
Petitioner,
vs.

CASE NUMBER: 1:17-CV-0074 (TJM/DEP)

Desiree Mitzel and Charles Mitzel,
Respondents.
Decision by Court. This action came to trial or hearing before the Court. The issues
have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED: that the Court ACCEPTS and ADOPTS the
recommendations made by Magistrate Judge Peebles in the February 27, 2017 Report,
Recommendation and Order dkt. # 11; that the dkt. # 2 petition is DENIED and
DISMISSED; that Petitioner's motion for reconsideration of the transfer order from the
Eastern District of New York (Dkt. No. 8) is DENIED as moot. The Court also finds that
the petition presents no questions of substance for appellate review, and that the
Petitioner has failed to make a "substantial showing of the denial of a constitutional
right." 28 U.S.C. 2253(c)(2); see Fed. R. App. P. 22(b). Accordingly, a certificate of
appealability will not issue. That Respondents' motion to dismiss (Dkt. # 20) is DENIED
as moot; and that Petitioner's motion for Leave to Proceed In Forma Pauperis in
Support of the Application to Appoint Counsel (Dkt. # 21) is DENIED as moot.
All of the above pursuant to the order of the Honorable Senior Judge Thomas J.
McAvoy, dated the 22nd day of May, 2017.
DATED: May 22, 2017

s/ Helen M. Reese
Helen M. Reese
Deputy Clerk
Entered on Docket: 05/22/2017 hmr
Date
By

Federal Rules of Appellate Procedure
Rule 4. Appeal as of Right
(a) Appeal in a Civil Case.
1. (1) Time for Filing a Notice of Appeal.
(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and
4(c), the notice of appeal required by Rule 3 must be filed with the
district clerk within 30 days after entry of the judgment or order
appealed from.
(B) The notice of appeal may be filed by any party within 60 days after
entry of the judgment or order appealed from if one of the parties is:
(i) the United States;
(ii) a United States agency;
(iii) a United States officer or employee sued in an official capacity; or
(iv) a current or former United States officer or employee sued in an
individual capacity for an act or omission occurring in connection with
duties performed on the United States' behalf — including all instances
in which the United States represents that person when the judgment
or order is entered or files the appeal for that person.
(C) An appeal from an order granting or denying an application for a
writ of error coram nobis is an appeal in a civil case for purposes of
Rule 4(a).
(2) Filing Before Entry of Judgment. A notice of appeal filed after the
court announces a decision or order—but before the entry of the
judgment or order—is treated as filed on the date of and after the entry.
(3) Multiple Appeals. If one party timely files a notice of appeal, any
other party may file a notice of appeal within 14 days after the date
when the first notice was filed, or within the time otherwise prescribed
by this Rule 4(a), whichever period ends later.
(4) Effect of a Motion on a Notice of Appeal.
(A) If a party timely files in the district court any of the following
motions under the Federal Rules of Civil Procedure, the time to file an
appeal runs for all parties from the entry of the order disposing of the
last such remaining motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual findings under Rule 52(b),
whether or not granting the motion would alter the judgment;
(iii) for attorney's fees under Rule 54 if the district court extends the
time to appeal under Rule 58;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is filed no later than 28 days
after the judgment is entered.
(B)(i) If a party files a notice of appeal after the court announces or
enters a judgment—but before it disposes of any motion listed in Rule
4(a)(4)(A)—the notice becomes effective to appeal a judgment or
order, in whole or in part, when the order disposing of the last such
remaining motion is entered.
(ii) A party intending to challenge an order disposing of any motion
listed in Rule 4(a)(4)(A), or a judgment's alteration or amendment
upon such a motion, must file a notice of appeal, or an amended notice

of appeal—in compliance with Rule 3(c)—within the time prescribed
by this Rule measured from the entry of the order disposing of the last
such remaining motion.
(5) Motion for Extension of Time.
(A) 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.
(B) A motion filed before the expiration of the time prescribed in
Rule 4(a)(1) or (3) may be ex parte unless the court requires
otherwise. If the motion is filed after the expiration of the prescribed
time, notice must be given to the other parties in accordance with
local rules.
(C) No extension under this Rule 4(a)(5) may exceed 30 days after
the prescribed time or 14 days after the date when the order granting
the motion is entered, whichever is later.
(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
earlier; and
(C) the court finds that no party would be prejudiced.
(7) Entry Defined.
(A) A judgment or order is entered for purposes of this Rule 4(a):
(i) if Federal Rule of Civil Procedure 58 (a) does not require a
separate document, when the judgment or order is entered in the civil
docket under Federal Rule of Civil Procedure 79 (a); or
(ii) if Federal Rule of Civil Procedure 58 (a) requires a separate
document, when the judgment or order is entered in the civil docket
under Federal Rule of Civil Procedure 79(a) and when the earlier of
these events occurs:
• the judgment or order is set forth on a separate document, or
• 150 days have run from entry of the judgment or order in the civil
docket under Federal Rule of Civil Procedure 79 (a).
(B) A failure to set forth a judgment or order on a separate document
when required by Federal Rule of Civil Procedure 58 (a) does not
affect the validity of an appeal from that judgment or order.