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Hill v. Warren

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

June 21, 2017

Naykima Tinee Hill, Petitioner,
v.
Milicent Warren, Respondent.

          OPINION AND ORDER GRANTING MOTION FOR EXTENSION OF TIME TO FILE AN APPEAL, DENYING WITHOUT PREJUDICE MOTION FOR APPOINTMENT OF COUNSEL [13], AND REISSUING OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS [11]

          Judith E. Levy United States District Judge

         On November 1, 2016, this Court denied Petitioner Naykima Tinee Hill's application for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254, but granted her a certificate of appealability. (Dkt. 11.)

         Petitioner filed a letter with this Court on or about June 9, 2017, which the Court will construe as a motion for an extension of time to file a notice of appeal and for appointment of counsel. (Dkt. 13.) Petitioner alleges that her former attorney never informed her that the petition for a writ of habeas corpus was denied, and never gave her a copy of that opinion, and she was therefore unable to file a timely appeal. (See Dkt. 13.) She further argues that she diligently attempted to contact him, via mail and family members, and that he failed to respond. (Id.)

         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. Dir., Dep't of Corr. of Ill., 434 U.S. 257, 264 (1978), and failure “to timely file a notice of appeal deprives an appellate court of jurisdiction.” Rhoden v. Campbell, 153 F.3d 773, 774 (6th Cir. 1998).

         Under Fed. R. App. P. 4(a)(5)(A), 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.

         Petitioner is not entitled to an extension of time to file an appeal based upon Fed. R. App. P. 4 (a)(5)(A) because she moved for an extension of time to file an appeal more than thirty days after the original period to file a notice of appeal expired.

         Fed. R. App. P. 4(a)(6) permits a district court to reopen the time to file an appeal for a period of fourteen days after the date when its order to reopen is entered provided that 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 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.

Fed. R. App. P. 4(a)(6); 28 U.S.C. § 2107; Martin v. Straub, 27 F. App'x 337, 338 (6th Cir. 2001).

         Petitioner filed her motion to extend the time to file an appeal more than 180 days after this Court entered the order denying habeas relief. Although Fed. R. App. P. 4(a)(6) provides that the time for filing an appeal can be reopened when a litigant does not receive notice of a judgment, “the 180-day limitation in the Rule [is] ‘specific and unequivocal.'” Bowles v. Russell, 432 F.3d 668, 673 (6th Cir. 2005); seealso Advisory Committee Notes to Rule 4(a)(6). Thus, the motion is ...


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