CALLIE V. S. GRANADE, District Judge.
The United States Court of Appeals for the Eleventh Circuit sua sponte remanded this case "for a determination as to whether [Willie Arthur Sullen] is eligible for relief" under Federal Rule of Appellate Procedure 4(a)(6). (Doc. 29).
A jury convicted the Petitioner ("Sullen") of first-degree domestic violence on May 26, 2010, and the Mobile County Circuit Court sentenced him to serve twenty-five years in the state penitentiary. (Doc. 1, p. 2). On appeal, the Alabama Court of Criminal Appeals affirmed the conviction (Doc. 10, Exhibit A). Sullen sought neither a rehearing in the Alabama Court of Criminal Appeals nor certiorari in the Alabama Supreme Court (see Doc. 1, p. 3). The certificate of final judgment was entered on March 9, 2011 (Doc. 10, Exhibit C).
Sullen filed a Rule 32 petition on August 25, 2011 in the Mobile County Circuit Court (see Doc. 1, p. 4). On July 1, 2012, Sullen filed a petition for writ of mandamus with the Alabama Court of Criminal Appeals, seeking to force the circuit court to rule on his Rule 32 petition (Doc. 10, Exhibit E;
Petitioner filed a complaint with this Court on March 5, 2014 raising the following claims: (1) His attorney rendered ineffective assistance; and (2) the State Courts improperly dismissed his Rule 32 petition after failing to rule on it for more than two years. (Doc. 1).
Respondent answered the petition, arguing that it should be dismissed as it was not filed within the one-year statute of limitations period (Doc. 10, pp. 5-8). Respondent refers to provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (hereinafter AEDPA) that amended, in pertinent part, 28 U.S.C. § 2244. On July 10, 2014, the Magistrate Judge entered a report and recommendation with the finding that the Petitioner's claims were time-barred and due to be dismissed. (Doc. 13).
On August 8, 2014, this Court adopted the Magistrate Judge's report and recommendation and entered a judgment denying and dismissing the petitioner's habeas petition. (Doc. 16). On December 30, 2014, the petitioner sent a letter to the court requesting information concerning his case. (Doc. 19).
On April 17, 2015, the Eleventh Circuit Court of Appeals sua sponte entered a remand order stating that Petitioner's letter requesting information concerning the case must be liberally construed as a motion to reopen the appeal period.
Petitioner may not have received actual notice of the district court's August 8, 2014 order denying his habeas petition and did not appeal the order within the 30-day time period set forth in Rule 4(a). Under Rule 4(a), the petitioner had 30 days from August 8, 2014, the date Judgment was entered, or until September 6, 2014, to timely file a notice of appeal.
Prior to 1991, neither the Federal Rules of Civil Procedure nor the Federal Rules of Appellate Procedure contained provisions permitting an extension of the time limit for filing an appeal when a party entitled to receive notice of the entry of a judgment or order fails to receive such notice.
Fed. R. App. P. 4(a)(6). By providing a limited opportunity to reopen the time for appeal, Rule 4(a)(6) "balances the inequity of foreclosing appeals by parties who do not receive actual notice of a dispositive order against the need to protect the finality of judgments."
The first condition is that the moving party, here, Willie Arthur Sullen, did not receive notice under Fed. R. Civ. P. 77(d) of the entry of the judgment. Non-receipt is difficult to conclusively prove.
The second condition is that the moving party file a motion to reopen within 180 days of the judgment or within 14 days of notice under Fed. R. Civ. P. 77(d). Here, the Court entered judgment in the case on August 8, 2014 and the Petitioner sent his letter on December 30, 2014. Under the "mailbox rule," the court deems the letter filed on the date Sullen delivered it to prison authorities for mailing, presumptively, December 30, the day that he signed it.
The final condition is that "no party would be prejudiced" by reopening the appeal period. The Advisory Committee Note from 1991 defines prejudice as "some adverse consequence other than the cost of having to oppose the appeal and encounter the risk of reversal, consequences that are present in every appeal. Prejudice might arise, for example, if the appellee had taken some action in reliance on the expiration of the normal time period for filing a notice of appeal." Fed. R. App. P. 4(a)(6) committee note. Here, the Respondent has not demonstrated any reliance on Mr. Sullen's failed habeas petition and it is also unlikely that she will be prejudiced by reopening the appeal period.
Therefore, Sullen fulfills the three requirements of Fed.R.App.P. 4(a)(6) and it is within this Court's discretion to reopen the appeal period for 14 days. The petitioner having already filed the notice of appeal, which the Court deems as both a motion to reopen the appeal period as well as the required notice of appeal, the Court finds that it is timely filed.
Accordingly, the Court