Anderson v. Knight et al, No. 2:2013cv02319 - Document 33 (E.D. La. 2019)
Court Description: ORDER AND REASONS - IT IS ORDERED that Petitioner's 31 motion for out of time appeal and 32 supplemental motion for out of time appeal are DENIED. Signed by Judge Susie Morgan. (bwn)
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Anderson v. Knight et al Doc. 33 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A TERRELL AN D ERSON , Plain tiff CIVIL ACTION VERSU S N O. 13 -2 3 19 CH AD LEE, W ARD EN , D e fe n d an ts SECTION : “E” ( 3 ) ORD ER AN D REAS ON S Before the Court is a m otion for out of tim e appeal 1 and a supplem ental m otion for out of tim e appeal 2 filed by Petitioner Terrell Anderson. For the following reasons the m otions are D EN IED . BACKGROU N D Petitioner Terrell Anderson is a state prisoner who was convicted under Louisiana law of arm ed robbery. 3 On February 11, 20 0 9, he was sentenced to a term of twenty-five years im prisonm ent. 4 After exhausting his state-court rem edies, Petitioner filed an application for a writ of habeas corpus in federal court. 5 On August 29, 20 14, the Court entered an order dism issing Petitioner’s application as untim ely, 6 entered judgm ent on that order, 7 and denied Petitioner a certificate of appealability. 8 Petitioner now seeks an out-of-tim e appeal of the Court’s August 29, 20 14, judgm ent. 9 1 R. Doc. 31. R. Doc. 32. 3 R. Doc 1, at 1. 4 Id. 5 Id. at 1– 5. 6 R. Doc. 28 . 7 R. Doc. 29. 8 R. Doc 30 . 9 R Doc. 31; R. Doc. 32. 2 1 Dockets.Justia.com LEGAL STAN D ARD Pursuant to Federal Rule of Appellate Procedure 22(b)(1), “[i]n a habeas corpus proceeding . . . the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. §2253(c). . . . If the district judge has denied the certificate, the applicant m ay request a circuit judge to issue it.” This request m ay either be explicit or if no express request for a certificate is filed, a “notice of appeal constitutes a request addressed to the judges of the court of appeals.”10 As for tim ing, under Federal Rule of Appellate Procedure 4(a)(1), a notice of appeal “m ust be filed with the district clerk within 30 days after entry of the judgm ent or order appealed from .” This tim e lim it is jurisdictional. 11 It m ay be exten ded, however, under the following two exceptions. 12 First, Federal Rule of Appellate Procedure 4(a)(5) provides: (A) The district court m ay extend the tim e to file a notice of appeal if: (i) a party so m oves no later than 30 days after the tim e prescribed by this Rule 4(a) expires; and (ii) regardless of whether its m otion is filed before or during the 30 days after the tim e prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause. Second, Federal Rule of Appellate Procedure 4(a)(6) provides: The district court m ay reopen the tim e 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 m oving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgm ent or order sought to be appealed within 21 days after entry; (B) the m otion is filed within 180 days after the judgm ent or order is entered or within 14 days after the m oving 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. 10 F ED. R. APP . P. 22(B)(2). v. Capps, 468 F.2d 1366, 1367 (5th Cir. 1972). 12 Resendiz v. Dretke, 452 F.3d 356, 358 (5th Cir. 20 0 6) (“This Court has explain ed that Rule 4 has two avenues ‘for rescuin g [an] appeal through a late-filed n otice of appeal.’ These two avenues are set forth in Rule 4(a)(5)-(6) . . . .” (quoting W ilkens v. Johnson, 238 F.3d 328 , 330 (5th Cir. 20 0 1)). 11 Holley 2 LAW AN D AN ALYSIS Petitioner is requesting the Court allow him to file a notice of appeal on a judgm ent that is m ore than five years old. Further, Petitioner does not allege, nor does the Court have reason to believe, he received late notice of the judgm ent he seeks to appeal. For those reasons, Petitioner’s request does not satisfy either exception to the 30 -day lim it for filing a notice of appeal. Rule 4(a)(5) m akes clear a district court is em powered to extend the tim e for filing a notice of appeal only when the m otion seeking extension is filed n o later than 30 days after expiration of the original 30 days specified in Rule 4(a)(1)(A), or in other words, no later than 60 days after entry of the order or judgm ent from which appeal is sought. 13 As the Fifth Circuit has laid out, only if this threshold showing is m et “can the district court even consider whether either of [Rule 4(a)(5)’s] two exclusive grounds for granting such an exten sion—excusable neglect or good cause—has been dem onstrated.”14 As stated, Petitioner is requesting an extension to file his notice of appeal m ore than five years after the judgm ent to be appealed was entered. This is well beyond the 60 day win dow available under Rule 4(a)(5). As a result, the Court finds Petitioner cannot file an out-of-tim e appeal pursuant to Rule 4(a)(5). “Thus, the only potential avenue of relief rem ain ing is pursuant to Rule 4(a)(6).”15 Rule 4(a)(6) is the “exclusive authority for the district court to order the reopen ing of an otherwise expired and no longer exten dable tim e for filing an [notice of appeal].”16 Subpart (A) is the “gatekeeper provision” of Rule 4(a)(6), and it specifies that only a party 13 W ilkens, 238 F.3d at 330 . Id. 15 Resendiz, 452 F.3d at 359. 16 W ilkens, 238 F.3d at 331. 14 3 who did not receive notice under Federal Rule of Civil Procedure 77(d) 17 of the judgm ent to be appealed within 21 days after entry of judgm ent is eligible to file a m otion to reopen. 18 Petitioner’s request for an out-of-tim e appeal is based on allegations he did not have access to legal assistance or a law library, was placed on lockdown at various points of his incarceration, and lost his legal docum ents. 19 Petitioner does not argue he received late notice of the judgm ent he seeks to appeal, and the Court has no reason to believe he received such late notice. Accordingly, Petitioner’s request does not satisfy the requirem ents of Rule 4(a)(6)(A), and the Court cannot use Rule 4(a)(6) to grant him an out-of-tim e appeal. Because Petitioner’s request does not satisfy either exception to the 30 -day lim it for filing a notice of appeal, Petitioner cannot file a late notice of appeal. CON CLU SION IT IS ORD ERED that Petitioner’s m otion for out of tim e appeal 20 and supplem ental m otion for out of tim e appeal 21 are D EN IED . N e w Orle a n s , Lo u is ian a, th is 1s t d ay o f Octo be r, 2 0 19 . ____________________ ________ SU SIE MORGAN U N ITED S TATES D ISTRICT JU D GE 17 F ED. R. CIV. P. 77(d) (“(d) Servin g Notice of an Order or J udgm ent. (1) Service. Im m ediately after enterin g an order or judgm ent, the clerk m ust serve notice of the entry, as provided in Rule 5(b), on each party who is not in default for failin g to appear. The clerk m ust record the service on the docket. A party also m ay serve notice of the entry as provided in Rule 5(b). (2) Tim e to Appeal Not Affected by Lack of Notice. Lack of notice of the entry does not affect the tim e for appeal or relieve--or authorize the court to relieve--a party for failin g to appeal within the tim e allowed, except as allowed by Federal Rule of Appellate Procedure (4)(a).”). 18 See W ilkens, 238 F.3d at 331 (construing sim ilar language in a prior version of Rule 4(a)(6)). 19 R. Doc. 31. 20 Id. 21 R. Doc. 32. 4
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