Wagner, Ronald v. Dittman, Michael

Filing 44

Transmission of Notice of Appeal, Appeal Information Sheet, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 42 Notice of Appeal (Attachments: # 1 Info Sheet, # 2 2/7/2014 Order, # 3 Judgment, # 4 4/4/2014 Order, # 5 4/10/2014 Order, # 6 Docket Sheet) (elc),(ps)

Case: 3:12-cv-00487-wmc Document #: 41 Filed: 04/10/14 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
RONALD HELMUT WAGNER,
Petitioner,

ORDER
l 2-cv-48 7-wmc

v.

MICHAEL MEISNER, Warden,
Columbia Correctional Institution,
Respondent.

On February 7, 2014, the court granted respondent's motion to dismiss the federal
habeas corpus petition filed by Ronald Helmut Wagner after concluding that review was
barred by the governing one-year statute of limitations. Wagner's time to appeal that
decision expired on March 9, 2014. See Fed. R. App. P. 4(a)(l)(A). Noting that he did
not receive notice of the decision until March 17, Wagner has now filed a motion to
reopen the time to appeal. (Dkt. # 40). The motion will be granted.
Pursuant to Fed: R. App. P. 4(a)(6), a district court may reopen the time to file an
appeal for a brief period of time ( 14 days) only if all of 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 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.
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Case: 3:12-cv-00487-wmc Document #: 41 Filed: 04/10/14 Page 2 of 3

FED. R. APP. P. 4(a)(6). Wagner does not meet the first criteria because he does not
demonstrate that he failed to receive notice of the judgment. In that respect, the clerk's
office sent notice of the order entering judgment in favor of respondent and dismissing
the petition to Wagner by regular mail at his address of record on February 7, 2014. It
was not returned undeliverable. Although Wagner was transferred recently from the Red
Granite Correctional Institution to the Columbia Correctional Institution, he reports that
the transfer did not take place until several weeks later on February 26, 2014. (Dkt. #
36). Thus, he provides no support for his bare assertion that the order was not delivered
as sent.
The court is entitled to presume that orders sent by regular mail are delivered to
the recipient to whom it was addressed. See Dakaj v. Holder, 580 F.3d 479, 482 (7th Cir.
2009); see also Bobbitt v. Freeman Co., 268 F.3d 535, 538 (7th Cir. 2001) ("The law
presumes timely delivery of a properly addressed piece of mail.") (citing McPartlin v.

Commissioner, 653 F.2d 1185, 1191 (7th Cir. 1981 )); Beck v. Somerset Technologies, Inc., 882
F.2d 993, 996 (5th Cir. 1989) ("Proof that a letter properly directed was placed in a U.S.
Post office mail receptacle creates a presumption that it reached its destination in the
usual time and was actually received by the person to whom it was addressed."). In other
words, evidence of proper mailing raises a rebuttable presumption of delivery. Laouini v.

CLM Freight Lines, Inc., 586 F.3d 473, 476 (7th Cir. 2009); see also Vincent v. CifY Colleges of
Chicago, 485 F.3d 919, 922 (7th Cir. 2007) ("Evidence of mailing is evidence of
delivery.") (citing Hagner v. United States, 285 U.S. 427 (1932); Henderson v. Carbondale
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Coal & Coke Co., 140 U.S. 25 (1891)); In re Nimz Transp., Inc., 505 F.2d 177, 179 (7th
Cir. 1974) ("[A] timely and accurate mailing raises a rebuttable presumption that the
mailed material was received[.]"). An uncorroborated, self-serving denial of receipt, even
if sworn, is insufficient to overcome the presumption of regular delivery by mail. Dakaj,
580 F.3d at 482; Gurung v. Ashcroft, 371 F.3d 718, 722 (10th Cir. 2004); In re Eagle Bus

Mfg., 62 F.3d 730, 735 (5th Cir. 1995). Because Wagner's bare assertion of non-receipt
is not enough to satisfy the requirement found in Fed. R. App. P. 4(a)(6)(A), his motion
to reopen must be denied.

ORDER
IT IS ORDERED that petitioner Ronald Helmut Wagner's motion to reopen the
time to appeal (dkt. # 16) is DENIED.
Entered this 10th day of April, 2014.
BY THE COURT:

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