Griffin v. Lamanna

Filing 55

DECISION AND ORDER: ORDERED that petitioner's motion to have his late Notice of Appeal accepted and filed by this Court, Dkt. No. 48 , is DENIED. ORDERED that the request for an extension, Dkt. No. 50 , is DENIED AS MOOT. ORDERED that, as is consistent with the Summary Order -- given none of the relevant circumstances to that inquiry have changed with the instant motion -- no certificate of appealability shall issue because petitioner failed to make a substantial showing of the denia l of a constitutional right, Dkt. No. 46 at 10, and Dkt. No. 53 is DENIED. ORDERED that the letter motion seeking to exceed the page limits for a motion for certificate of appealability, Dkt. No. 54 , is DENIED AS MOOT. Signed by Chief Judge Brenda K. Sannes on October 23, 2024. (nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
GARY GRIFFIN,
v.

Petitioner,

9:19-CV-0155
(BKS/DJS)

JAMIE LAMANNA,
Respondent.
APPEARANCES:

OF COUNSEL:

THE MILLS LAW GROUP, PLLC
Attorney for Petitioner
99 Pine Street
Suite 204
Albany, New York 12207

JASPER LEE MILLS, III

HON. LETITIA JAMES
Attorney for Respondent
New York State Attorney General
The Capitol
Albany, New York 12224

PAUL B. LYONS, ESQ.
Ass’t Attorney General

BRENDA K. SANNES
Chief United States District Judge
DECISION and ORDER
I.

INTRODUCTION
Petitioner Gary Griffin sought, and was denied, federal habeas corpus relief pursuant

to 28 U.S.C. § 2254. Dkt. No. 1, Petition ("Pet."); Dkt. No. 29, Report-Recommendation and
Order; Dkt. No. 30, Objection; Dkt. No. 37, Counseled Supplemental Objection; Dkt. No. 42,
Brief in Response to Petitioner's Objections; Dkt. No. 46, Summary Order; Dkt. No. 47,

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Judgment. 1
Presently before the Court is petitioner's counseled motion seeking an extension of
time to file a notice of appeal. 2 Dkt. No. 48, Motion; see also Dkt. No. 49, Notice of Appeal.
Respondent opposes the motion. Dkt. No. 51. 3 Petitioner filed a brief reply. For the reasons
which follow, petitioner's motion is denied.
II.

DISCUSSION
A notice of appeal in a civil case, where the United States is not a party, must be filed

within thirty days after entry of the judgment or order from which the appeal is taken. Fed. R.
App. P. 5(a)(2); 4(a)(1)(A); see also Martinez v. Hoke, 38 F.3d 655, 656 (2d Cir. 1994).
“[T]he taking of an appeal within the prescribed time is ‘mandatory and jurisdictional.’”
Bowles v. Russell, 551 U.S. 205, 209 (2007). Here, the Judgment was filed on April 30, 2024.
Dkt. No. 47. For the Notice of Appeal to be timely, it had to be submitted on or before May
30, 2024. Dkt. No. 48 at 2; Dkt. No. 51 at 3. However, it was not.
Motions to extend the time to file a Notice of Appeal must be filed no later than thirty

After petitioner filed his reply to respondent's opposition to the Petition, Attorney Jasper Mills filed a notice of
appearance on petitioner's behalf. Dkt. No. 28. Accordingly, everything that petitioner filed after the Court issued its
Report-Recommendation and Order denying and dismissing the Petition has been with the benefit of counsel. See Dkt.
Nos. 30 & 37, Counselled Objection to the Report-Recommendation and Order; Dkt. No. 48, Motion to File Late Notice;
Dkt. No. 49, Notice of Appeal.
2
As respondent notes, petitioner's counsel erroneously made the instant motion pursuant to Rule 4(b)(4) of the Federal
Rules of Appellate Procedure, a provision which pertains to criminal cases. Dkt. No. 51 at 3; Dkt. No. 48 at 1; Dkt. No. 52
at 2; FED. R. APP. PRO. 4(b) (entitled "Appeal in a Criminal Case"). Because a federal habeas corpus proceeding is a civil
action, Rule 4(a) is the appropriate provision pursuant to which the Court will determine the instant motion. See e.g.
Martinez v. Hoke, 38 F.3d 655, 656-57 (2d Cir. 1994) (applying provisions of Rule 4(a) to a motion to file a late notice of
appeal in a federal habeas corpus proceeding).
3
Respondent was initially given the opportunity to respond to the instant motion on or before July 12, 2024. See Dkt.
Entry for Dkt. No. 48 dated 06/21/24 (indicating deadlines). On July 10, 2024, respondent timely filed a request for a brief,
two-week extension of time. Dkt. No. 50. The request indicated that counsel had attempted to reach out to petitioner's
attorney for consent to the extension; however, he had not yet received an answer. Id. at 1. Prior to the undersigned
acting on the extension request, and before the proposed extended deadline, respondent filed a response. Dkt. No. 51.
The following day, petitioner filed a brief reply, without receiving prior permission from the undersigned, in which he did
not object to the timeliness of respondent's opposition. Dkt. No. 52. All submissions have been considered by the Court
and the request for an extension is denied as moot.
1

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days after the time prescribed by Rule 4(a) expires, and the moving party must show
excusable neglect or good cause. Fed. R. App. P. 4(a)(5)(A)(i), (ii), (5)(C); see also Martinez,
38 F.3d at 656. The thirty-day period for seeking an extension is a “strict jurisdictional
deadline.” Goode v. Winkler, 252 F.3d 242, 245 (2d Cir. 2001). "The district court lacks
jurisdiction under Rule 4(a)(5) to grant a motion filed beyond the 30-day extension period."
Martinez, 38 F.3d at 656.
Rule 4(a)(5) would be applicable to extend the notice of appeal deadline so long as the
request is filed by July 1, 2024. 4 Here, petitioner's motion was filed with the Court on June
21, 2024. Accordingly, it could be construed as a request to extend the deadline since it
satisfies the first prong of Rule 4(a)(5).
The next step is determining whether petitioner has established the second prong by
showing good cause or excusable neglect. "The 'good cause' standard applies when the
need for an extension arises from factors outside the control of the movant; the 'excusable
neglect' standard applies when the need for an extension results from factors within the
movant's control." Alexander v. Saul, 5 F.4th 139, 142 (2d Cir. 2021); see also Fed. R. App.
P. 4 advisory committee's notes to 2002 Amendments (explaining that the two standards "are
not interchangeable, and one is not inclusive of the other," because both "have different
domains") (internal quotation marks and citations omitted).
In support of his request, Petitioner’s counsel has filed a four-page motion and a letter
motion. The unsworn motion provides the following information. Counsel did not receive the
April 30, 2024 decision "until weeks later as counsel's staff (who is tasked with receiving,
filing and scheduling said documents) was . . . out of the office for both medical and personal
Thirty days from the date the deadline terminated was June 29, 2024; however, that was a Saturday. See Fed. R. Civ. P.
6(a)(1)(c).

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reasons." Dkt. No. 48 at 2. An unnamed person then incorrectly informed counsel that
petitioner “was already in receipt of said decision." Id. Counsel “made several attempts” to
set up telephone calls/consultations "to discuss the possibility to appeal the . . . decision," but
“[i]t was not until June 21, 2024 that [counsel] confirmed that petitioner had never received
the April 30, 2024 decision and that he wanted to pursue appeal of the judgment entered.” Id.
"It was not until June 21, 2024 that [it was] . . . confirmed that [p]etitioner had never received
the . . . decision . . . and . . . wanted to pursue an appeal[.]" Id. Petitioner’s counsel attributes
the delay in filing the notice of appeal due “misrepresentations made, the overlapping
absences of support staff” and “the inability to contact the petitioner” in custody. Id.
Petitioner’s counsel provided additional information in an unsworn letter motion
opposing defendant’s request for an extension of time. (Dkt. No. 52). The letter motion states
that “attempts to set up phone consultations” with petitioner “were constantly delayed,” and
that counsel made two attempts to meet with petitioner in person at the facility but was told
that he could not go into the facility “because ‘the count’ had started, and it would take over
two hours to clear. This made it impossible for [counsel] to stay in wait due to other
scheduled court related matters.” Id.
In determining whether an attorney's action or inaction is an appropriate reason for
allowing a late notice of appeal to be filed, the Second Circuit has consistently applied the
excusable neglect standard. See Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 365-66
(2d Cir. 2003) (applying excusable neglect standard when movant sought extension because
his counsel relied on opposing counsel's ultimately incorrect statement of when the filing
deadline was and there was "confusion in the records and dockets of these cases."); see also
In re Johns-Manville Corp., 476 F.3d 118, 124 (2d Cir. 2007) (applying excusable neglect

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standard to Rule 4(a) motion seeking extension where counsel made a mistake calendaring
deadlines); Alexander v. Saul, 5 F.4th 139, 142-43 (2d Cir. 2021) (concluding that a
petitioner's "failure to maintain contact with her attorney [was] a fact within her reasonable
control," and she "was at least partially [at fault for her failure to timely appeal] due to her own
inadvertence;" therefore, excusable neglect, rather than good cause, was the controlling
standard).
A late claimant has the burden of proving excusable neglect. Alexander, 5 F.4th at
148. To determine whether he has established “excusable neglect” under Fed. R. App. P.
4(a)(5), courts consider the four factors outlined in Pioneer Investment Services Co. v.
Brunswick Associates Limited Partnership, 507 U.S. 380, 395 (1993). Alexander, 5 F.4th at
142. Thus, courts evaluate:
[1] the danger of prejudice to the [non-movant], [2] the length of
the delay and its potential impact on judicial proceedings, [3] the
reason for the delay, including whether it was within the
reasonable control of the movant, and [4] whether the movant
acted in good faith. [Pioneer, 507 U.S. at 395.]
In the typical case, the first two Pioneer factors will favor the
moving party . . . And rarely in the decided cases is the absence of
good faith at issue. . . . [Consequently] three of the factors usually
weight in favor of the party seeking the extension, [so the Second
Circuit] and other circuits have focused on the third factor: "the
reason for the delay, including whether it was within the
reasonable control of the movant."
Silivanch, 333 F.3d at 366 (internal citations omitted). Because “[t]he requirement of filing a
timely notice of appeal is ‘mandatory and jurisdictional,’” the Second Circuit has “taken a hard
line in applying the Pioneer test.” Alexander, 5 F.4th at 142.
In considering the reasons for the filing delay, the undersigned will follow the Second
Circuit's direction to concentrate primarily on the third factor. See Alexander, 5 F.4th at 149

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("Affording dispositive weight to th[e third Pioneer] factor accords with our precedents, which
have described the reason for the delay as the most important Pioneer factor.") (citing cases).
Respondent also focuses on the same, arguing that petitioner's counsel's explanations for the
delay are insufficient to establish excusable neglect and, consequently, the third Pioneer
factor favors denying petitioner's motion. Dkt. No. 51 at 5-7. The Court agrees.
The Court is sympathetic to the difficulties petitioner's counsel faces running a
successful practice. However, "where, as here, the rules and court orders are clear,
inadvertence, mistake, or carelessness of an attorney does not constitute excusable neglect."
Ales v. Stern, No. 2:13-CV-6783, 2014 WL 950087, at *4 (E.D.N.Y. Mar. 11, 2014) (citing
cases and quoting, inter alia, Johns-Manville Corp. which concluded that "absent
extraordinary circumstances, attorney inadvertence is not excusable neglect."); see also
Redhead v. Conf. of Seventh-Day Adventists, 360 F. App'x 232, 235 (2d Cir. 2010) (holding
that "counsel's blunder – even if an honest mistake – would not have substantiated
'excusable neglect,' because the rule governing the grant of an extension to file a notice of
appeal is unambiguous.").
Here, the core of counsel's explanation is that because he was understaffed (1) he did
not timely open his mail and discover the Court's opinion and (2) he was unable to devote the
needed time to personally confirm petitioner's intentions, relying instead on another
unidentified source which was, ultimately, incorrect. The absence of staff, even for extended
periods of time, is an unfortunate, though not unexpected, situation in business. Petitioner's
counsel did not indicate, nor would the record support, that his ability to practice law was
precluded by his support staff's absence. Petitioner has failed to demonstrate extraordinary
circumstances.

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Moreover, at worst, petitioner's counsel's failure to remain current with the
correspondence related to his active cases – whether it be written letters from petitioner or
decisions from the Court – rises to the level of a blunder. Additionally, petitioner's counsel's
inability to successfully arrange and execute prompt meetings with petitioner to determine
relevant litigation strategies -- because counsel's availability was so limited due to him
attending to his other clients' needs without all the administrative support to which he was
accustomed – could be characterized as innocent inadvertence. However, as previously
discussed, the Second Circuit has consistently held that those situations are insufficient to
warrant the equitable remedy contemplated in Pioneer. See Redhead, 360 F. App'x at 235.
Petitioner has thus failed to establish excusable neglect.
III.

CONCLUSION
WHEREFORE, it is hereby
ORDERED that petitioner's motion to have his late Notice of Appeal accepted and filed

by this Court, Dkt. No. 48, is DENIED; and it is further
ORDERED that the request for an extension, Dkt. No. 50, is DENIED AS MOOT; and
it is further
ORDERED that, as is consistent with the Summary Order -- given none of the relevant
circumstances to that inquiry have changed with the instant motion -- no certificate of
appealability shall issue because petitioner failed to make a substantial showing of the denial
of a constitutional right, Dkt. No. 46 at 10, and Dkt. No. 53 is DENIED; and it is further
ORDERED that the letter motion seeking to exceed the page limits for a motion for
certificate of appealability, Dkt. No. 54, is DENIED AS MOOT; and it is further
ORDERED that the Clerk serve a copy of this Decision and Order on the parties in

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accordance with the Local Rules.
Dated: October 23, 2024

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