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Oliver v. Romanowski

United States District Court, E.D. Michigan, Southern Division

April 7, 2015

DERRICK LAJUAN OLIVER, Petitioner,
v.
KENNETH ROMANOWSKI, Respondent.

OPINION AND ORDER DENYING THE MOTION TO EXTEND TIME TO FILE AN APPEAL

SEAN F. COX, District Judge.

On April 22, 2013, this Court denied Petitioner Derrick Lajuan Oliver ("Oliver")'s habeas application brought pursuant to 28 U.S.C. ยง 2254 and denied him a certificate of appealability and leave to appeal in forma pauperis.

On March 3, 2015, Oliver filed a motion for the Court to issue a new opinion and order denying the habeas petition, essentially asking for an extension of time to file his appeal. Oliver claims that he never received a copy of this Court's Opinion and Order denying the petition for writ of habeas corpus and would have appealed the order had he received notice of the order. A review of Oliver's motion and the docket in this case reflects that is a credible claim. [1]

Nevertheless, for the reasons that follow, this Court must DENY Oliver's motion to extend the time for filing an appeal because it lacks the authority to grant the relief Oliver requests.

Oliver asks this Court to reopen the time for him to file an appeal because he did not receive timely notice of the Court's decision from April 22, 2013 denying habeas relief.

Fed. R. App. P. 4 (a)(1) states that a notice of appeal must be filed within thirty days of the entry of the judgment or order from which the appeal is taken. This time limit is mandatory and jurisdictional. Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264 (1978). The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Rhoden v. Campbell, 153 F.3d 773, 774 (6th Cir. 1998). Because more than thirty days have elapsed from when this Court denied Oliver's habeas application, the Sixth Circuit would not have appellate jurisdiction in this matter, unless Oliver is granted an extension of time.

A party asserting that he or she failed to receive prompt notice of an order that he or she wishes to appeal may seek relief for filing an appeal under either Federal Rule of Appellate Procedure 4(a)(5) or 4(a)(6). Zak v. United States, 133 F.3d 451, 453 (6th Cir. 1998).

Fed.R.App.P. 4 (a)(5)(A) indicates that a district court may extend the time to file a notice of appeal if:

(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
(ii) that party shows excusable neglect or good cause.

This Court issued its judgment on April 22, 2013. Oliver had until May 22, 2013 to file a notice of appeal. Oliver therefore had until June 22, 2013 to file for an extension of time to file an appeal pursuant to Rule 4(a) (5). Oliver's motion for the court to reissue its opinion was filed March 3, 2015. Because Oliver's motion was filed more than 30 days after the expiration of the appeal, Oliver is unable to obtain an extension of the time to file an appeal pursuant to Rule 4(a)(5). Bailey v. St. Ambrose Academy, 38 F.3d 1215(Table); No. 1994 WL 589680, at *1 (6th Cir. Oct. 21, 1994).

Fed. R. App. P. 4(a)(6), however, indicates that a district court may reopen the time to file an appeal for a period of fourteen days after the date when its order to reopen is entered, so long as 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 7 days after the moving party receives notice under Federal Rule of Civil Procedure ...

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