REPORT AND RECOMMENDATIONS ON MOTION TO REOPEN APPEAL TIME

MICHAEL R. MERZ, Magistrate Judge.

This case is before the Court on Defendant Lewis's Motion to Reopen Time to File an Appeal (Doc. No. 210).

Fed. R. App. P. 4(a)(6) provides that a district court may reopen the time to file an appeal provided the moving party did not receive notice of the entry of judgment within 21 days after entry and the motion for leave is filed not later than 14 days after the moving party receives notice of the judgment. Reopening is discretionary, not mandatory upon fulfillment of the conditions.

The docket does not show that the Entry and Order (Doc. No. 206) overruling Lewis's 60(b)(4) motion (Doc. No. 203) was sent to him when it was entered. The docket does show that a copy was sent on August 18, 2014. Lewis's Motion to Reopen does not state when he received a copy of the Entry and Order, but his instant Motion was not filed until the 21st day after a copy was sent to him. Lewis has not shown that he satisfies the fourteen days limit on filing a motion to reopen after receiving notice of a judgment.

Moreover, even if Lewis did show he meets that deadline, the Court should not reopen the time to appeal because the Court has already determined that any appeal would be objectively frivolous. In part this is because it was Lewis' seventh Rule 60(b) motion, attempting to relitigate issues already decided against him and on which he did not appeal.

Because any appeal would be objectively frivolous, this Court should not exercise its discretion to allow an appeal and probably burden the court of appeals with at least a certificate of appealability decision and an in forma pauperis decision.