Carrasco v. USA

Filing 11

ORDER denying 10 Pro Se MOTION For Relief From Judgment Pursuant to Fed.R.Civ.P.60(b) re 9 Clerk's Judgment. The Court will deny Petitioners motion to file an untimely appeal. Signed by District Judge Robert J. Conrad, Jr on 1/5/2018. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-298-RJC
(3:13-cr-199-RJC-1)
FRED CARRASCO, JR.,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
_______________________________________

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ORDER

THIS MATTER comes before the Court on pro se Petitioner’s “Motion for Relief from
Judgment Pursuant to FED. R. CIV. P. 60(b),” (Doc. No. 10).
I.

BACKGROUND

On June 6, 2016, Petitioner filed the underlying motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255. (Doc. No. 1). On October 13, 2016, this Court denied and
dismissed Petitioner’s motion to vacate on the merits. (Doc. No. 8). Petitioner thereafter had
sixty days in which to file his notice of appeal, but such notice was never entered on this Court’s
docket. See FED. R. APP. P. 4(a)(1)(B)(i).
On April 12, 2017, Petitioner filed the pending motion, in which Petitioner seeks an order
from this Court vacating and amending the judgment dated October 13, 2016, so that Petitioner
may file a timely appeal. In support, Petitioner asserts:
1.

On October 13, 2016, the court denied petitioner’s motion. Under Fed. R. App. P.
4(a)(1)(B)(i), petitioner’s notice of appeal was due within 60 days.

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2. Petitioner was aware of his right to appeal and the time limit for filing a notice of
appeal. On December 8, 2016, he mailed a notice of appeal and an application to
proceed in forma pauperis to the Clerk’s office for filing. However, it was apparently
never received.
(Doc. No. 10 at 1). Petitioner states that he therefore “requests that the Court vacate the
judgment previously entered and simultaneously enter a new judgment denying the Section 2255
motion, which would allow a notice of appeal to be filed within 60 days of such order.” (Id.).
II.

STANDARD OF REVIEW

Petitioner’s pending motion is properly construed as a motion to file an untimely appeal
pursuant to Federal Rule of Appellate Procedure 4(a)(6) because he is essentially seeking to have
this Court reopen the time for him to appeal. Federal Rule of Appellate Procedure 4(a)(6)
provides for the reopening of the time to file an appeal. See Rule 11 of the Rules Governing
Section 2255 Proceedings in the United States District Courts, 28 U.S.C. foll. § 2255 (“Federal
Rule of Appellate Procedure 4(a) governs the time to appeal an order entered under these
rules.”). District courts have the discretion to reopen the time to file an appeal, but only if all
three of the following conditions are satisfied: (1) if 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; (2) if 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 (3) if the court finds
that no party would be prejudiced. FED. R. APP. P. 4(a)(6) (emphasis added). See also Portley-El
v. Milyard, 365 Fed. Appx. 912, 917 n.9 (10th Cir. 2010) (noting that “the failure to meet any
one condition [of Rule 4(a)(6)] precludes the reopening of the time to file an appeal” in Section
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2241 habeas case). The time limitations in Federal Rule of Appellate Procedure 4(a)(6) are
codified by 28 U.S.C. § 2107(c), which provides: “[T]he district court may, upon motion filed
within 180 days after entry of the judgment or order or within 14 days after receipt of such
notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of
entry of the order reopening the time for appeal.” Id. As such, the time limits are “mandatory
and jurisdictional.” Bowles v. Russell, 551 U.S. 205, 209 (2007); see United States v. Gray, 98
Fed. Appx. 239, 239 (4th Cir. 2004) (noting that the filing periods under Federal Rule of
Appellate Procedure 4(a)(6) are “mandatory and jurisdictional,” in Section 2255 habeas case).
Moreover, the time limits are not subject to “equitable modification.” Baker v. United States,
670 F.3d 448, 456 (3d Cir. 2012) (“Accordingly, there is no doubt after Bowles that those rules
listed in 28 U.S.C. § 2107, which are also embodied in Appellate Rules 4(a)(1) and 4(a)(6), are
jurisdictional, and are not subject to equitable modification.”).
III.

DISCUSSION

Here, Petitioner fails to meet the first of three mandatory requirements for reopening the time
to file an appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6).1 That is, Petitioner
concedes in his motion that he was notified of and was aware of his sixty-day deadline to file a
notice of appeal. He asserts, however, that he mailed his notice of appeal to this Court’s clerk’s
office within the sixty days, but he asserts, correctly, that the notice was never docketed in this
Court. Because Rule 4(a) is jurisdictional, this Court is constrained to deny Petitioner’s motion.

Although Petitioner’s pending motion to file an untimely appeal was not filed in this Court
until April 12, 2017, it appears that Petitioner placed his motion in the prison system for mailing
on April 7, 2017, which was less than 180 from entry of this Court’s judgment. See (Doc. No.
10-1 at 2). See Houston v. Lack, 487 U.S. 266, 275-76 (1988) (noting that, under the prison
mailbox rule, a prisoner’s document is deemed filed on the date it is delivered to prison officials
for mailing).
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See Slezak v. Burtt, 398 Fed. Appx. 921, 922-23 (4th Cir. 2010) (upholding, in Section 2254
habeas case, the district court’s denial of a motion to reopen the appeal period when the
petitioner failed to timely file the motion within the fourteen days required by Rule 4(a)(6)); see
also Roberts v. Cain, 485 Fed. Appx. 689, 690 (5th Cir. 2012) (finding the district court
powerless to reopen the time for filing a notice of appeal, when the motion failed to comply with
Rule 4(a)(6)). Thus, the Court is without jurisdiction to grant the Petitioner’s motion for
untimely appeal.2 See Williams v. Kelly, 569 Fed. Appx. 149, 150 (4th Cir. 2014) (finding that
Section 2254 habeas petitioner who failed to file a timely notice of appeal because “he was not
‘properly notified’ of the district court's denial decision in time to file a timely notice of appeal”
was not eligible for the reopening of the appeal period under Federal Rule of Appellate
Procedure 4(a)(6) because the 180-day reopening period expired before the petitioner filed his
notice of appeal and motion to reopen).
IV.

CONCLUSION

Based on the foregoing, the Court will deny Petitioner’s motion to file an untimely appeal.
IT IS, THEREFORE, ORDERED that
(1) Petitioner’s “Motion for Relief from Judgment Pursuant to FED. R. CIV. P. 60(b),”
(Doc. No. 10), is DENIED.

The Court recognizes that this is a harsh result, but the Court’s hands are tied by the
requirements of Rule 4(a)(6) and 28 U.S.C. § 2107(c). Accord Mumford v. Harrelson, No.
1:04cv17, 2007 WL 2156336, at *3 (M.D.N.C. July 25, 2007) (finding that the plaintiff was
barred from appealing the dismissal of his case, noting that the result was “arguably unfair to
Plaintiff since it appears that a mistake by the clerk’s office contributed to the failure of Plaintiff
to file a timely Notice of Appeal,” but finding that it was the plaintiff’s “duty ultimately to
follow up with the clerk’s office to ensure that the notice of appeal had been filed within the time
limit to do so”).
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(2) The Court finds that the Petitioner has not made a substantial showing of a denial of a
constitutional right. See generally 28 U.S.C. § 2253(c)(2); see also Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy § 2253(c), a “petitioner
must demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong”) (citing Slack v. McDaniel, 529 U.S.
473, 484-85 (2000). Petitioner has failed to demonstrate both that this Court’s
dispositive procedural rulings are debatable, and that his Motion to Vacate states a
debatable claim of the denial of a constitutional right. Slack v. McDaniel, 529 U.S.
473, 484-85 (2000). As a result, the Court declines to issue a certificate of
appealability. See Rule 11(a), Rules Governing Section 2255 Proceedings for the
United States District Courts, 28 U.S.C. § 2255.
Signed: January 5, 2018

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