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MINETOS v. SCULY

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


September 12, 1986

EUSTACE MINETOS, Petitioner,
v.
CHARLES SCULY, Superintendent Green Haven Correctional Facility, Respondent

The opinion of the court was delivered by: SWEET

SWEET, D.J.

By his letter of August 18, 1986, Eustace Minetos ("Minetos"), petitioner pro se, requests that this court recognize his previous submission of a notice of appeal which was not filed with the clerk of the district court pursuant to Fed.R.App.P.4(a). The court interprets this request as one for an extension of the time in which Minetos may file his notice of appeal or alternatively, to deem the prior submission a timely filing within Fed.P.App.P.4(a). For reasons given below, the request is denied.

 On January 6, 1986, this court denied Minetos' petition for a writ of habeas corpus. See Minetos v. Scully, 84 Civ. 7791 (RWS) (S.D.N.Y. 1986). Judgment was entered on January 7, 1986. On February 5, 1986 this court received from Minetos a request for a certificate of probable cause dated January 28, 1986 which would enable him to appeal this court's denial of the writ. See Fed.R.App.P.22(b). The certificate was granted and filed on February 27, 1986. A notice of appeal was not filed by Minetos with the clerk of the district court. In order to comply with the provisions of Fed.R.App.P.4(a), a notice of appeal should have been filed with the clerk of the district court within thirty days of the entry of judgment. This deadline fell on February 6, 1986. On April 30, 1986, Minetos motioned the United States Court of Appeals for the Second Circuit for the appointment of counsel. That motion was remitted to the clerk of the district court as the Court of Appeals had no record of a notice of appeal having been filed by Minetos.

 Minetos, by letter dated August 18, 1986, stated that he submitted to these chambers a notice of appeal together with his request for a certificate of probable cause on February 5, 1986. Minetos enclosed a copy of a notice of appeal, dated January 28, 1986 with his August 18, 1986 letter. No record of receipt of Minetos' notice of appeal exists in the chambers file on this closed case.

 Given the timing of the events in question, the court is both unable to grant an extension of the time for filing the notice of appeal and is unable to recognize the submission of a notice of appeal to these chambers as a "filing" within Fed.R.App.P.4(a). Once the initial thirty-day period for filing and the thirty-day period for obtaining an extension have passed, the district court no longer plays a role in the appeal process. At this point any further inquiry into the circumstances of Minetos' filing must be undertaken by the Court of Appeals, since compliance with Fed.R.App.P.4(a) is a prerequisite to that court's jurisdiction. See Tribbitt v. Wainwright, 462 F.2d 600 (5th Cir. 1972). For this court to grant an extension is clearly contrary to the requirements of Fed.R.App.P.4(a) and Fed.R.App.P.26(b) which specifically directs this court that it "may not enlarge the time for filing a notice of appeal." For the court to deem the submission of a notice of appeal to these chambers by Minetos valid and timely would be a usurpation of the authority of the Court of Appeals to determine the boundaries of its own jurisdiction.

 In order to allow the Court of Appeals to determine whether or not it has jurisdiction of this matter, it would be necessary for Minetos to now file a notice of appeal with the clerk of the district court, together with an affidavit detailing the circumstances of his original attempt to file.

 Minetos' request for an extension of time for the filing of his notice of appeal is denied.

 IT IS SO ORDERED.

19860912

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