United States District Court, S.D. Georgia, Statesboro Division
John Thomas Garrett appealed this Court's denial of his
28 U.S.C. § 2255 motion. Doc. 19. It is untimely.
Doc. 24 at 1. Nevertheless appellants can be granted a second
chance through a Fed. R. App. P. 4(a)(6) reopen motion. To
that end, the Eleventh Circuit has remanded for this Court to
engage in Rule 4(a)(6) factfinding. Id. at 2 (copy
attached). These standards must be applied:
A party must file a notice of appeal within 30 days after the
judgment or order being appealed is entered. Fed. R. App. P.
4(a)(1)(A). Ordinarily, a party's failure to timely
appeal is fatal to his appeal because the timely filing of a
notice of appeal is mandatory and jurisdictional. Hollins
v. Dep't of Corr., 191 F.3d 1324, 1326 (11th Cir.
1999). Although Federal Rule of Civil Procedure 77(d)
requires the clerk of court to provide the parties notice of
judgments and orders, lack of notice of the entry by the
clerk does not affect the time to appeal or relieve, or
authorize the court to relieve, a party for failure to appeal
within the time allowed, except as provided in Rule 4(a) of
the Federal Rules of Appellate Procedure. Fed.R.Civ.P.
Pursuant to Rule 4(a)(6), the district court may
reopen the time to file an appeal for a period of 14 days if
three conditions are satisfied. Fed. R. App. P. 4(a)(6).
First, the court must find that the moving party did not
receive notice within 21 days of the entry of the order or
judgment that it seeks to appeal. Id. 4(a)(6)(A).
Second, the party must move to reopen the appeal period
within 180 days after the order or judgment is entered or
within 14 days after receiving notice of the entry,
whichever is earlier. Id. 4(a)(6)(B). Third, the
court must find that no party would be prejudiced if the
window to appeal were reopened. Id. 4(a)(6)(C).
Holsey v. Warden, 613 F.App'x 913, 914 (11th
Cir. 2015) (emphasis added).
Court entered its judgment against Garrett on August 9, 2016.
Doc. 17. Garrett's Notice of Appeal is postmarked October
17, 2016 (69 days later) ~ well past the 30-day limit.
"However, " the appeals court notes, "Mr.
Garrett suggests in his notice of appeal that he did not
receive any notice about his case from the district court
until September 15[, 2016]." Doc. 24 at 1. If that
"notice" included a copy of this Court's
judgment, then it would be undisputed that 32 days elapsed
between September 15, 2016 and his October 17, 2016, Notice
of Appeal. Doc. 19 at 3. That's more than "within 14
days after receiving notice of the entry, " the
applicable Rule 4(a)(6)(B) time limit.
Garrett never did say when he received a copy of this
Court's judgment, nor when he placed his Notice of Appeal
in his prison's mail system ~ the point at which inmates
are ordinarily deemed to have filed something with the
courts. See, e.g., Williams v. McNeil, 557 F.3d
1287, 1290 n.2 (11th Cir. 2009) ("Under the 'prison
mailbox rule, ' a pro se prisoner's court
filing is deemed filed on the date it is delivered to prison
authorities for mailing.").
Eleventh Circuit decided to "treat his notice of appeal
as a motion for reopening of time to appeal, pursuant to
[Fed. R. App. P. 4(a)(6)]." Doc. 24 at 2. It thus wants
to know precisely when Garrett heard from this Court ~
whether its communication to him "included [this
Court's] judgment, or whether it consisted solely of the
magistrate judge's report and recommendation recommending
the denial of Mr. Garrett's § 2255 motion.
Id. at 1-2. "Certainly, " that court
concluded, "the record shows that court mail was
undeliverable to Mr. Garrett for a time." Doc. 24 at
1-2. So, for Rule 4(a)(6) determination (hence, reopen)
purposes, that court wants this Court to "determine
whether Mr. Garrett filed his notice of appeal within 14 days
of receiving notice of the judgment, if he did receive such
notice." Id. at 2. That court will then
determine the Rule 4(a)(6) issue. Id.
point the Eleventh Circuit perhaps overlooked: Garrett was
obligated, but failed, to keep this Court appraised of his
address. See S.D. Ga. L. Civ. R. 11.1 ("Each
attorney and pro se litigant has a Moon v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1989)
("[O]nce a pro se IFP litigant is in court, he
is subject to the relevant law and rules of the court. . .
."); see also doc. 13 (copy of Report and
Recommendation (R&R) mailed to Garrett returned as
undeliverable); doc. 16 (copy of order adopting R&R
returned as undeliverable).
a valid address, this Court's Clerk had nowhere to send
this Court's August 9, 2016 judgment. See doc.
17 and August 9, 2016 "Staff notes." On September
12, 2016 ~ beyond the 30-day appeal period noted above ~
Garrett updated his address. Doc. 18. The Clerk sent him
copies of the R&R, the adoption Order, and
Judgment on that same day. See September
12, 2016 "Staff notes." On October 20, 2016, the
Court received Garrett's Notice of Appeal, which states
that he did not receive a copy of the R&R until September
15, 2016. Doc. 19 at 1. The Notice was not dated, but the
envelope Garrett used bears an October 17, 2016 postmark.
Id. at 3.
the Eleventh Circuit wants information to help it determine
whether Garrett filed his notice of appeal "within 14
days after receiving notice . . . of the entry" of this
Court's judgment. Rule 4(a)(6); doc. 24 at 2. It
evidently wants to nail down: (a) the date on which Garrett
actually received this Court's judgment; and (b) the day
Garrett placed his appeal notice (doc. 19) in his
prison's mail system. This Court tentatively finds that
Garrett received notice of this Court's adverse judgment
on September 15, 2016. That's the very date that he says
he received it, which is three days after this Court mailed
it to him using First Class mail.
that, in turn, leads to the next question: Did Garrett
"prison-mail-file" his notice of appeal within Rule
4(a) (6)'s 14-day limit? As noted, he did not date his
notice, much less certify in writing when he placed it in his
prison's mail system. So, the Court will send him a
"Mingo Statement" to nail that down. Still, the
Eleventh Circuit may want to reconsider its objective here.
As discussed above, "[t]his Court's Local Rule 11.1
states that a 'pro se litigant has a continuing
obligation to apprise the Court of any address
change.'" Jackson, 2016 WL 6902405 at *4.
This Court denied similar relief in Jackson because
the inmate failed to keep the Court informed of his address
per Local Rule 11.1. A separate order additionally reminded
Jackson of that requirement, while no such order exists here.
Yet, this Court routinely dismisses entire cases for Rule
11.1 violations, and there is no principled distinction
constraining a different result here.
event, Garrett must firm up two dates suggested but not
definitively established by the record: (1) the date he
received a copy of the judgment (the Court has tentatively
found this, but Garrett must confirm or deny it and, if he
denies it, state the actual date in writing); and (2) the
date he placed his Notice of Appeal into his prison's
mailing system. Given the ease with which a convicted
criminal can simply lie about such things, it is worth
reminding him that
lying under oath, either live or "on paper, " is
illegal. See United States v. Roberts, 308 F.3d
1147, 1155 (11th Cir. 2002) (defendant's falsely
subscribing to statement in his habeas petition that he had
not previously filed a § 2255 motion, was
"material" for purposes of perjury prosecution;
statement fooled the clerk of the court into accepting the
"writ" for filing, and led the magistrate judge to
consider its merits until she discovered that the
"writ" was a successive § 2255 motion in
disguise); United States v. Dickerson, CR608-36,
doc. 1 (S.D. Ga. Dec. 11, 2008) (§ 2255 movant indicted
for perjury for knowingly lying in his motion seeking
collateral relief from his conviction); id., doc. 47
(guilty verdict), cited in Irick v. ...