Griffin v. Griffin

Filing 14

ORDER denying 13 Motion for Leave to Appeal consistent with this Order.. Signed by Hon. Michael A. Telesca on 2/7/2017. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

EDWIN MULLIGAN,
Petitioner,

No. 6:15-cv-06502-MAT
DECISION AND ORDER

-vsTHOMAS GRIFFIN, Superintendent,
Green Haven Correctional Facility,
Respondent.

BACKGROUND
Pro se petitioner Edwin Mulligan (“Mulligan” or “Petitioner”),
an inmate in the custody of the New York State Department of
Corrections and Community Supervision, filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. This Court denied
THE request for a writ of habeas corpus, denied a certificate of
appealability, and dismissed the petition on October 26, 2016
(Dkt #11). Judgment was entered on October 27, 2016 (Dkt #12).
Mulligan subsequently filed a Motion for Extension of Time to
File a Notice of Appeal dated and signed January 25, 2017 (Dkt #13,
p. 1 of 5), with an attached Notice of Appeal (Dkt #13, p. 2 of 5),
a letter to the Second Circuit Court of Appeals dated January 2,
2017 (Dkt #13, p. 3 of 5), and an enclosure letter to the Clerk of
Court of the Western District of New York dated January 28, 2017
(Dkt #13, p. 4 of 5). “Granting Petitioner’s pro se motion the
liberal interpretation that it is due, see Burgos v. Hopkins,

14 F.3d 787, 790 (2d Cir. 1994), the Court construes Petitioner’s
motion to be a motion for an extension of time to file a notice of
appeal,

brought

under

FED. R. APP. P.

4(a)

(5),

and

in

the

alternative, a motion to repoen the time to file a notice of
appeal, brought under FED. R. APP. P. 4(a)(6).” Trento v. Dennison,
No. 05 CIV. 5496 PKC, 2008 WL 400921, at *1 (S.D.N.Y. Feb. 14,
2008). For the following reasons, however, the Court cannot grant
relief to Petitioner under either FED. R. APP. P. 4(a)(5) or 4(a)(6).
DISCUSSION
Very

strict

timelines

circumscribe

the

district

court’s

ability to grant extensions of time to file notices of appeal. See
Endicott Johnson Corp. v. Liberty Mut. Ins. Co., 116 F.3d 53, 56
(2d Cir. 1997). In a civil case such as Mulligan’s petition under
28 U.S.C. § 2254, “the notice of appeal . . . must be filed with
the district clerk within 30 days after entry of the judgment or
order appealed from.” FED. R. APP. P. 4(a)(1)(A). The requirements
of Federal Rule of Appellate Procedure (“F.R.A.P.”) 4(a) are
“mandatory

and

jurisdictional.”

Griggs

v.

Provident

Consumer

Discount Co., 459 U.S. 56, 61 (1982) (per curiam) (quotation
omitted).
I.

F.R.A.P. 4(a)(5)
In a civil action in which the United States or its officer or

agency is not a party, a motion for an extension of time to file a
notice of appeal must be filed no later than 30 days after the

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expiration of the 30-day period in which to file a notice of
appeal. See FED. R. APP. P. 4(a)(1)(A), (5)(A)(i). Orders and
judgments dismissing an action are to be set forth on separate
documents under Federal Rule of Civil Procedure (“F.R.C.P.”) 58(a),
and are considered entered for the purposes of F.R.A.P. 4(a) when
the judgment or order is entered in the civil docket under F.R.C.P.
79(a) and when the earlier of these two 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 F.R.C.P. 79(a). See FED. R. APP. P. 4(a)(7)(A)(ii). However,
a court “lacks [the subject matter] jurisdiction to grant any
extension motion that is not filed within [F.R.A.P.] 4(a)(5)’s
30-day ‘grace period.’” Cohen v. Empire Blue Cross & Blue Shield,
142 F.3d 116, 118 (2d Cir. 1998) (per curiam).
Here, the order dismissing the petition and the judgment in
favor of Respondent were both entered, as separate documents, on
the Court’s civil docket on October 26, 2016, and October 27, 2016,
respectively, pursuant to F.R.C.P. 79(a). Petitioner therefore had
until 30 days from October 27, 2016, to file his notice of appeal.
However, since 30 calendar days ended on November 26, 2016, was a
Saturday, Petitioner would have had until Monday, November 28,
2016, to file his notice of appeal in which to file a notice of
appeal. See FED. R. APP. P. 26(a)(1)(C) (“When the period is stated
in days or a longer unit of time . . . include the last day of the

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period, but if the last day is a Saturday, Sunday, or legal
holiday, the period continues to run until the end of the next day
that is not a Saturday, Sunday, or legal holiday.”); see also Jones
v. Walsh, No. 06 CIV. 225 (JGK), 2008 WL 586270, at *1 (S.D.N.Y.
Mar. 4, 2008). Therefore, under F.R.A.P. 4(a)(5)(A)(i), Petitioner
had 30 days from November 28, 2016, to file a motion for an
extension of time to file a notice of appeal. Thirty days from
November 28, 2016, was Wednesday, December 28, 2016.
The

Court

now

must

determine

the

date

of

filing

of

Petitioner’s motion for an extension of time. Petitioner’s motion
was received by this Court on January 30, 2017, but his motion was
signed and dated January 25, 2017, and the enclosure letter was
dated January 28, 2017. The prison mailbox rule, applicable to
incarcerated, pro se litigants, has been extended to the filing of
notices of appeal by habeas petitioners. See Noble v. Kelly, 246
F.3d 93 (2d Cir. 2001) (holding that a prisoner appearing pro se
satisfies the time limit for filing a notice of appeal if he
delivers the notice to prison officials within the time specified;
this

“prison

mailbox

rule”

is

justified

by

the

litigant’s

dependence on the prison mail system and lack of counsel to assure
timely filing with the court). Here, Petitioner dated his motion on
January 25, 2017, but apparently did not mail it until January 28,
2017, at the earliest, since that is the date he signed the
enclosure letter to the Clerk of this Court. Therefore, the Court

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finds the date of filing for purposes of the analysis under
F.R.A.P. 4(a)(5) is January 28, 2017. Petitioner’s motion for an
extension of time to file a notice of appeal, filed on January 28,
2017, is untimely

by 31 days. Even using January 25, 2017, as the

applicable filing date, the instant motion is still untimely by 28
days.
In sum, Petitioner’s motion, to the extent it is brought under
F.R.A.P. 4(a)(5), is untimely, and the Court lacks the discretion
to grant the motion. Cohen, 142 F.3d at 118 (citing, inter alia,
Endicott Johnson Corp. v. Liberty Mut. Ins. Co., 116 F.3d 53, 56
(2d Cir. 1997) (“Nor is the court authorized to grant a motion that
was

filed

beyond

the

30–day

extension

period

[in

F.R.A.P.

4(a)(5)].”)).
II.

F.R.A.P. 4(a)(6)
F.R.A.P. 4(a)(6) provides in relevant part that
a 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

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(C) the court finds that no party would be
prejudiced.
FED. R. APP. P. 4(a)(6).
Here, Petitioner does not allege that he did not receive
notice under F.R.C.P. 77(d) of the entry of the judgment or order
he seeks to appeal. Rather, Petitioner’s motion suggests that his
delay in filing was due to his ignorance of the procedure for
filing a notice of appeal. On the form motion Petitioner filed,
where it asks the movant to “[t]ell the Court what the ‘excusable
neglect/good cause’ led to [the] failure to file an appeal within
the required number of days[,]” Petitioner states, “Enclosed with
order of denial was a letter to the clerk closing the case. The
Second Circuit informed me how to appeal. Subsequently, this court
sent me the (Filing An Appeal) forms.” (Dkt #13, p. 1 of 5).
“A district court lacks the discretion to grant a motion
brought under [F.R.A.P.] 4(a)(6) unless all of the requirements
listed above have been met.” Trento, 2008 WL 400921, at *2 (citing
Martinez v. Hoke, 38 F.3d 655, 656 (2d Cir. 1994) (per curiam)).
Because there is no suggestion that he did not receive notice under
F.R.C.P. 77(d) of the entry of the order dismissing his habeas
petition or the judgment in favor of the respondent, a necessary
requirement, Petitioner cannot avail himself of F.R.C.P. 4(a)(6).
Relief under this section must be denied.

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CONCLUSION
Petitioner’s Motion for Extension of Time to File a Notice of
Appeal, which the Court has considered under both F.R.A.P. 4(a)(5)
and F.R.A.P. 4(a)(6), is denied. Because Petitioner has not made a
substantial showing of the denial of a constitutional right with
respect to what has been raised in his motion, a certificate of
appealability will not issue with respect to the motion. See 28
U.S.C. § 2253(c)(2); Lozada v. United States, 107 F.3d 1011,
1016-17 (2d Cir. 1997), abrogated on other grounds by United States
v. Perez, 129 F.3d 255 (2d Cir. 1997).
IT IS SO ORDERED.
S/Michael A. Telesca
___________________________________
HON. MICHAEL A. TELESCA
United States District Judge
DATED:

February 7, 2017
Rochester, New York

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