RIVERA v. SOMMERS et al

Filing 56

AMENDED MEMORANDUM. SIGNED BY HONORABLE MARK A. KEARNEY ON 2/4/20. 2/5/20 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED.(jpd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AMILi CAR RIVAS RIVERA

CIVIL ACTION
NO. 16-456

v.

SUPT. JACK SOMMERS, et al.

AMENDED MEMORANDUM 1
KEARNEY,J.

February 4, 2020

To ensure finality, we must adhere to deadlines for filing an appeal. We cannot allow a
person to appeal years after the final order and argue, largely without a basis, he never received
the Order. We today address a prose inmate's November 6, 2019 argument he never received our
October 30, 2017 Order denying his Petition for habeas relief. Exercising our discretion and
carefully evaluating the entire history of his habeas litigation, we find no basis to reinstate his
appellate rights two years after our final Order. Our case today involves a person who repeatedly
monitored the docket, filed several motions and pleadings, and, as we just learned, wrote to the
Commonwealth's lawyer in an attached letter not of record seeking to ensure timely delivery of
her reply memoranda to his known long-known address at SCI Waymart. But then he did nothing
for almost two years. His lengthy unexplained silence is deafening. His November 2019 argument
of a typographical error in an undated letter delivered to him but addressed to another facility in
2019 does not establish in any way he did not receive our October 30, 2017 Order in time to file
an appeal. We find no grounds to reinstate his appellate rights long after the 180-day period from
our Qctober 30, 2019 final Order.

1

We amend only to correct a typographical error in the year of Plaintiffs November 6, 2019
argument. Nothing in this Memorandum affects our final Order (ECF Doc. No. 55).

I.

Background
On January 19, 2016, Amilicar Rivas Rivera petitioned for a writ of habeas corpus

challenging a February 12, 2013 conviction for twenty-four burglaries, five attempted burglaries,
theft, and criminal conspiracy resulting in a sentence of fifteen to thirty years. 1 He appealed with
no success. 2 He sought habeas relief arguing ineffective assistance arguing his counsel failed to
communicate he could plead guilty for some charges and proceed to trial for the other charges and
the public defender advised him a direct appeal would be unsuccessful. 3 He also raised these issues
in a Post-Conviction Relief Act Petition. 4 He further argued ineffective assistance of his postconviction counsel for failing to file an effective amended Petition, providing false statements, and
not raising the issues he thought would win. 5 Mr. Rivas Rivera alleged prosecutorial misconduct
by allegedly presenting a fabricated burglary to the trial court. 6 Mr. Rivas Rivera also argued the
trial court abused its discretion by misapplying a rule of criminal procedure in considering a letter
in a post-sentence motion although he did not raise these issues because his counsel ignored his
requests. 7 His post-conviction counsel also did not raise these issues. 8 The Commonwealth
contested all of these claims. It is undisputed all of Mr. Rivas Rivera's paperwork identified his
address at SCI Waymart in Waymart, Pennsylvania.
Mr. Rivas Rivera moved to stay his writ of habeas corpus within a month of filing his
petition for failing to exhaust his claims. 9 Mr. Rivas Rivera again identified his address at SCI
Waymart. Mr. Rivas Rivera sought leave to file a reply in support of his habeas Petition identifying
his address at SCI Waymart. 10 Mr. Rivas Rivera also moved to file a counterclaim to the
Commonwealth's answers to his Petition for writ of habeas corpus identifying his address at SCI
Waymart. 11 Mr. Rivas Rivera thereafter filed a series of pleadings and motions always identifying
his address at SCI Waymart. 12 He always identified his address at SCI Waymart and never claimed

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he did not receive mail nor is there an entry on the docket of undelivered mail.
On August 30, 2017, Judge Perkin entered a Report and Recommendation finding Mr.
Rivas Rivera's Petition should be denied with prejudice and dismissed without an evidentiary
hearing. 13 Mr. Rivas Rivera promptly moved for an extension; he did claim he did not receive the
mail. 14 We granted him leave to file objections to Judge Perkin's Report and Recommendation.
Mr. Rivas Rivera filed his objection. 15 Mr. Rivas Rivera never claimed he did not receive mail at
SCI Waymart.
On October 30, 2017, we overruled Mr. Rivas Rivera's objections to Judge Perkin's
extensive and well-reasoned Report and Recommendation and dismissed the habeas petition. 16 As
our docket (available to Mr. Rivas Rivera) confirmed, our Clerk of Court mailed our Order to Mr.
Rivas Rivera. We learned this week Mr. Rivas Rivera sent the attached November 5, 2017 letter
to the Commonwealth lawyer asking for a copy of any reply she may file to his objections. He did
not move for relief. His November 5, 2017 letter to the Commonwealth's attorney does not stay
or toll his obligation. He curiously sent a copy of his November 5, 2017 letter to Judge Perkin
although Mr. Rivas Rivera knew Judge Perkin's role ended on August 30, 2017.
Although Mr. Rivas Rivera repeatedly filed papers before our October 30, 2017 decision,
we heard nothing from Mr. Rivas Rivera requesting a status until over two years later.
On November 5, 2019, Mr. Rivas Rivera claimed he never received the October 30, 2017
Order citing an undated letter sent from the Clerk of Court seeking a status mistakenly identifying
an address in Waynesburg, Pennsylvania with the corrected address on the envelope. 17 The undated
letter from our Clerk of Court included an address in a different typographical font than the
remainder of the undated letter.

On November 6, 2019, we denied his request to appeal nunc pro

tune from our October 30, 2017 Order without prejudice for him to move for relief swearing receipt

3

of no legal mail related to the October 30, 2017 Order at SCI Waymart or demonstrating other
legal mail not reaching him at the SCI Waymart other than this one 2019 response to his 2019
letter. 18 On November 26, 2019, Mr. Rivas Rivera wrote to our Clerk of Court advising he filed a
grievance with the prison regarding the delivery of his October 30, 2017 Order. 19 On January 7,
2020, Mr. Rivas Rivera wrote to our Clerk of Court partially responsive to our November 6, 2019
Order seeking reinstatement of his appeal rights arguing the correctional officer's response to his
grievance confirmed he received all mail addressed to him but not suggesting delay in the mail or
any return mail, or identifying mail he did not receive. To the contrary, the response to his
grievance indicates the correctional officers at SCI Waymart delivered all mail to him. There is
no indication on any file of undelivered mail or returned mail to Mr. Rivas Rivera.

II.

Analysis
Mr. Rivas Rivera moves to reinstate his appeal rights well after two years of us overruling

his objections to Judge Perkin's Report and Recommendation. He argues he did not receive our
October 30, 2017 Order and did not check with anyone for almost two years when he wrote a letter
(we do not have) concerning the status and the return letter from the Clerk of Court identified an
incorrect address. We disagree.
Federal Rule of Civil Procedure 77(d) governs the Clerk's duty to provide written notice
of all orders and judgments and the effect of noncompliance with this duty. We require the Clerk
serve the parties with notice of entry of an order or judgment immediately after making the entry. 20
A party's time to appeal is not affected by a lack of notice. "Lack of notice of the entry does not
affect the time for appeal or relieve--or authorize the court to relieve--a party for failing to appeal
within the time allowed, except as allowed by Federal Rule of Appellate Procedure (4)(a)."21
Rule 4(a) "provides a mechanism for granting an extension of time when a party would be

4

unfairly deprived of an appeal because of the failure of a court clerk. " 22 A party must file a notice
of appeal within thirty days after entry of a judgment or order, but a party who fails to appeal
within thirty days may move to reopen the time to appeal a judgment or order under Federal Rule
of Appellate Procedure 4(a)(6). 23 Rule 4(a)(6) permits us to reopen the appeal period for fourteen
days, but only if we find: (1) "the party did not receive notice under Federal Rule of Civil
Procedure 77(d) of a judgment or order within twenty-one days after its entry," 24 (2) the party
moved to reopen "by the earlier of 180 days following entry of the judgment or order or fourteen
days after the party receives notice of its entry,"25 and (3) no party would be prejudiced. 26
Complete satisfaction of these conditions does not create a party's automatic right to reopen, 27 but
failure to satisfy these conditions is fatal to a party's motion. 28 The ultimate determination to
reopen the appeal period falls within our discretion. 29
In Abulkhair v. Liberty Mutual Insurance Company, 30 Judge Linares dismissed Mr.
Abulkhair's complaint on February 11, 2010 for lack of subject matter jurisdiction. 31

Mr.

Abulkhair's period to appeal the dismissal closed on March 13, 2010, but he did not file notice of
appeal until March 31, 2010 and Judge Linares dismissed the appeal for lack of appellate
jurisdiction. 32 On April 12, 2010, Mr. Abulkhair moved under Rule 4(a)(6) to reopen the appeal
period and submitted an affidavit "dated March 29, 2010, in which he averred that the February
11 order 'has never been served upon the Plaintiff by neither the Clerk, nor [opposing] counsel,"'
and he "first received notice of the order on March 29 when it was handed to him by the court
clerk." 33
Our Court of Appeals followed the Court of Appeals for the Ninth and Second Circuits in
reasoning while a district court maintains ultimate discretion in ruling on a motion to reopen the
appeal period, "where non-receipt [of an order] has been proven and no other party would be

5

prejudiced, the denial of relief cannot rest on a party's failure to learn independently of the entry
of judgment during the thirty-day period for filing notices of appeal."34 Our Court of Appeals
remanded to the district court to consider Mr. Abulkhair's Rule 4(a)(6) motion. 35
Abulkhair is distinct. Mr. Abulkhair submitted an affidavit under the penalty of perjury

stating he never received the clerk's notice of the entry of the dismissal Order. 36 Mr. Rivas Rivera
<,

offers no such proof. Mr. Rivas Rivera carefully monitored his case, pleading after pleading, from
January 2016 up until our October 30, 2017 Order, then we heard nothing from him for almost two
years. While our Clerk of Court's undated letter addressed to Mr. Rivas Rivera stated an incorrect
Waynesburg, Pennsylvania address, the envelope containing this letter stated Mr. Rivas Rivera's
correct address at SCI Waymart. While Mr. Rivas Rivera submitted additional factual support
with his motion to reopen by including the incorrectly addressed letter from our clerk, the existence
of the correctly addressed envelope makes his contention less believable. We do not find it
credible Mr. Rivas Rivera cautiously monitored his case for almost two years, evidenced by filing
papers on a near-monthly basis, then completely disappeared for almost two years while waiting
for notice of our Order.
Even if we find Mr. Rivas Rivera did not receive notice of our Order because of a
typographical error divined from an undated Clerk of Court letter with a different font for the
address, he still fails to satisfy Rule 4(a)(6). We must still deny reinstatement under Abulkhair.
Mr. Rivas Rivera is required to move "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."37 Mr. Rivas Rivera's untimely motion is well past the 180-day
deadline. This failure precludes Mr. Rivas Rivera from relief under Rule 4(a)(6).

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III.

Conclusion
Mr. Rivas Rivera's argument is somehow our October 30, 2017 Memorandum did not get

to him at SCI Waymart either by forwarding or otherwise. And he did nothing to follow up for
almost two years when he inquired about an incorrect address based on an undated letter from the
Clerk of Court to him with an incorrect address in a different typographical font.

We have no

evidence Mr. Rivas Rivera received any other mail with an inaccurate address. Mr. Rivas Rivera
cites a typographical error in a letter (but not an envelope) arguing the Clerk of Court mailed our
October 30, 2017 Order to an incorrect address which no one ever forwarded to him. He never
checked to see what happened. We have no basis to find this possibility.
Exercising our discretion, we find no basis to reinstate Mr. Rivas Rivera's appeal rights
because of a lack of mail delivery. There is no evidence he did not receive the mail other than his
say-so. The correctional officers confirmed they delivered all mail to him. Mr. Rivas Rivera's
only argument relies upon a typographical error in a later letter which he received in any event.
He offers no explanation for never checking on his case for several months although he vigilantly
filed motions, extensions, counterclaims, and a variety of paperwork until our October 30, 2017
Order and Memorandum.
We decline to exercise our discretion to allow Mr. Rivas Rivera to reopen his appeal period
over two years after the entry of our October 30, 2017 Order dismissing his habeas Petition and
finding no grounds for a certificate of appealability.
1

ECF Doc. No. 1.

2

Id.

3

Id.

4

Id.

7

9

ECF Doc. No. 5.

10

ECF Doc. No. 10.

11

ECF Doc. No. 19.

12

See e.g. ECF Doc. Nos. 22, 26, 29, 30, 34, 36, 41, 44.

13

ECF Doc. No. 42.

14

ECF Doc. No. 44.

15

ECF Doc. No. 46.

16

ECF Doc. No. 49.

17

ECF Doc. No. 50.

18

ECF Doc. No. 51.

19

ECF Doc. No. 52.

°Fed. R. Civ. P. 77(d)(l).

2

21

Fed. R. Civ. P. 77(d)(2).

22

Abulkhair v. Liberty Mutual Insurance Company, 405 F. App'x 570, 573 (3d Cir. 2011) (citing
Marcangelo v. Boardwalk Regency, 47 F.3d 88, 90 (3d Cir. 1995)).
23

Fed. R. App. P. 4(a)(l)(A).

24

Abulkhair, 405 F. App'x at 573 (citing Fed. R. App. P. 4(a)(6)(A)).

25

Id.

26

Fed. R. App. P. 4(a)(6)(C).

27

See Abulkhair, 405 F. App'x at 573 (3d Cir. 2011) (citing Arai v. American Bryce Ranches, Inc.,
8

316 F.3d 1066, 1069 (9 th Cir. 2003)).
28

See Fed. R. App. P. 4(a)(6) ("the district court may reopen the time to file an appeal ... only if'
all conditions are satisfied).
29

Abulkhair, 405 F. App'x at 573, 574 (3d Cir. 2011) (citing Arai, 316 F.3d at 1069 (holding a
"district court has the discretion to deny a Rule 4(a)(6) motion even when the rule's requirements
are met")).
30

Id.

31

Id. at 571.

33

Id., 405 F. App'x at 571-72.

34

Id., 405 F. App'x at 574.

35Id.

37

Fed. R. App. P. 4(a)(6)(B) (emphasis added).

9