United States District Court, D. New Jersey
DAVID J. WYNN, Petitioner,
UNITED STATES, Respondent.
KEVIN McNULTY, District Judge.
Petitioner, David J. Wynn, is a former federal prisoner who is proceeding pro se with a petition for writ of error/coram nobis. On August 11, 2013, Judge Cavanaugh granted respondent's motion to dismiss because petitioner had failed to plead sufficient facts to support a claim of ineffective assistance of counsel. ( See Dkt. No. 14 at p. 2.)
On March 27, 2014, the Court received a letter from Mr. Wynn. Mr. Wynn states in that letter that he was not notified by the Court or the Clerk that Judge Cavanaugh had granted respondent's motion to dismiss. Mr. Wynn states that he only became aware of Judge Cavanaugh's decision on March 8, 2014. Mr. Wynn further asserts that he is "interested in pursuing [his] case further[.]" (Dkt. No. 15 at p. 2.)
On June 5, 2014, Chief Judge Simandle reassigned this case to me in light of Judge Cavanaugh's retirement. I will order the Clerk to reopen this case so that I can rule on the issues raised by Mr. Wynn in his letter.
I construe Mr. Wynn's pro se March 27, 2014 letter as a motion under Federal Rule of Appellate Procedure 4(a)(6) to reopen the period for filing an appeal. "Rule 4(a)(6) provides a mechanism for granting an extension of time when a party would be unfairly deprived of an appeal because of the failure of a court clerk.'" Abulkhair v. Liberty Mutual Ins. Co., 499 F.Appx. 129, 130 (3d Cir. 2012) (per curiam) (citing Marcangelo v. Boardwalk Regency, 47 F.3d 88, 90 (3d Cir. 1995)). Rule 4(a)(6) provides as follows:
Reopening the Time to File an Appeal. The district court may reopen the time the time 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 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.
FED. R. APP. P. 4(a)(6).
Failure of notification. Mr. Wynn states that he was never notified by the Court or the Clerk of Judge Cavanaugh's order dismissing his coram nobis petition, and only found out about it on March 8, 2014. The Advisory Committee notes to to Rule 4(a)(6)(A) state that "because Civil Rule 77(d) requires that notice of the entry of a judgment or order be formally served under Civil Rule 5(b), any notice that is not so served will not operate to preclude the reopening of the time to appeal under new subdivision (a)(6)(A)." Fed. R. App. P. 4(a)(6) Advisory Committee Notes to 2005 Amendments.
The file shows that Mr. Wynn was cc'ed on the August 11, 2013 Order that dismissed his petition. Because Mr. Wynn is proceeding pro se and is not an electronic filer, the Clerk would customarily have sent the Order on him through the regular U.S. mail. While this would constitute effective service of the Order under Federal Rule of Civil Procedure 5(d), "Rule 4(a)(6) refers to actual receipt, not simply effective service[.]" In re WorldCom, Inc., 708 F.3d 327, 334 (2d Cir. 2013); Khor Chin Lim v. Courtcall, Inc., 683 F.3d 378, 380 (7th Cir. 2012) ("[A] document is not received' under Rule 4(a)(6) until it arrives at the litigant's ...