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July v. D'Ilio

United States District Court, D. New Jersey

March 28, 2017

SHAWN JULY, Petitioner,
v.
STEPHEN D'ILIO, Respondent.

          OPINION

          KEVIN MCNULTY United States District Judge

         I. INTRODUCTION

         The petitioner, Shawn July, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. By Opinion and Order dated August 4, 2016, this Court denied Mr. July's habeas petition and declined to issue a certificate of appealability. (Dkt. Nos. 31, 32) Now pending before this Court are two post-judgment motions by Mr. July. He has filed a motion extend his time to appeal. (See Dkt. No. 36) In addition, he has filed a motion for relief from the August 4, 2016 judgment pursuant to Federal Rule of Civil Procedure 60(a), (b)(2), and (b)(6). (See Dkt. No. 34)

         Accordingly, the Clerk will be ordered to reopen this case so that Mr. July's motions can be ruled upon. For the following reasons, Mr. July's motions will be denied, and the file re-closed.

         II. DISCUSSION

         The factual and procedural history of this case, and the grounds for denying habeas relief, were laid out in my previous opinion. (Dkt. no. 31) Familiarity with that prior opinion is assumed.

         A. Motion for Extension of Time to File Appeal

         Mr. July had thirty days from August 4, 2016-i.e., until September 6, 2016-to file his appeal from my denial of habeas relief. See Fed. R. App. P. 4(a)(1); Fed.R.Civ.P. 6(a)(3) ("the time for filing is extended to the same time on the first accessible day that is not a Saturday, Sunday, or legal holiday"). It was not until November 29, 2016, however, that Mr. July filed his notice of appeal, along with a motion for leave to file an appeal out of time. (See Dkt. Nos. 35 & 36)[1]

         Beyond that 30-day deadline to appeal, however, Federal Rule of Appellate Procedure 4(a)(5)(A) grants a limited 30-day grace period. A district court may extend the time to file a notice of appeal if a party files an appropriate motion within that grace period and demonstrates excusable neglect or good cause:

(A) The 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) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.

Fed. R. App. P. 4(a)(5)(A) (emphasis added).

         That Rule 4(a)(5)(A)(i) grace period would have expired on October 6, 2016. Mr. July filed his motion to extend the time to appeal on November 29, 2016, well outside the 30-day grace period. The motion was therefore untimely, and cannot be granted.[2]See In re Mullarkey, 396 F.App'x 807, 808 (3d Cir. 2010) (holding that District Court properly denied motion for extension of time to file an appeal that was filed more than thirty days after notice of appeal was to be filed pursuant to Federal Rule of Appellate Procedure 4(a)(1)); White v. Zimmerman, No. 01-5208, 2001 WL 1029140, at *1 (D.C. Cir. Aug.29, 2001) (stating "[t]o obtain relief under Rule 4(a)(5), appellant was required to move for an extension of time no later than 30 days after the time for appeal expired"); Goode v. Winkler,252 F.3d 242, 245 (2d Cir. 2001) (district court abused discretion in granting motion to extend filed three days after the grace period expired, because "even assuming that [party] made a showing of good cause for an extension, the untimely motion should not have been entertained"); Cummings v. Jackson, No. CIV A 07-4046 (MLC), 2008 WL 5377782, at *5-6 (D.N.J. Dec. 18, 2008). The motion being untimely, the question of whether the plaintiff can show good cause or excusable neglect is moot. B. Motion for Relief from Judgment Mr. July has also filed a motion for relief from judgment pursuant to Federal Rules of Civil Procedure 60(a), (b)(2), and (b)(6). Mr. July argues that this ...


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