United States District Court, D. New Jersey
MCNULTY United States District Judge
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.
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
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
Motion for Extension of Time to File Appeal
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)
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
(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
Fed. R. App. P. 4(a)(5)(A) (emphasis added).
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.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 ...