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DI LI v. ARTUZ

United States District Court, Southern District of New York


March 19, 2003

ZHEN DI LI, PETITIONER,
v.
CHRISTOPHER ARTUZ, RESPONDENT.

The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge

MEMORANDUM ORDER

By Memorandum Order dated January 11, 2002, the Court dismissed the above-captioned petition for habeas corpus as untimely. Judgment was entered dismissing the petition on January 16, 2002. In the Court's decision, the Court did not address the question of a certificate of appealability. Petitioner has filed a motion, dated January 13, 2003, seeking an "Order pursuant to Rule 60(b) of the Federal Rules of Civil Procedure granting Petitioner permission to file a late Notice of Appeal and a request for a Certificate of Appealability," on the ground that petitioner was not informed of the Court's order dismissing his habeas corpus petition until December 2002, after he wrote the Clerk of Court requesting information on the status of his petition. Construed liberally pursuant to Haines v. Kerner, 404 U.S. 519, 520-21 (1972), Petitioner's motion appears to be a request for reopening the time to file an appeal under Rule 4(a)(6), as well as a request for a certificate of appealability pursuant to Rule 22 of the Federal Rules of Appellate Procedure, and the Court will consider the motion as such.

Rule 4(a)(6) of the Federal Rules of Appellate Procedure allows for the reopening of the time to file an appeal if the Court finds, inter alia, that the moving party was entitled to notice of the entry of judgment, but did not receive such notice within 21 days after entry. The Court's records belie Petitioner's contention that he did not receive timely notice of the January 16, 2002 judgment.

On February 25, 2002, the Court received Petitioner's Request for a Certificate of Appealability and a Motion for Leave to Appeal in Forma Pauperis, both dated February 8, 2002, and both having Second Circuit captions. Petitioner attached a signed affirmation to the February 8, 2002 request ("Appeal. Aff.") in which Petitioner represented that he received this Court's order dismissing his petition "on or about January 16, 2002." (Appeal. Aff. ¶ 5.) Petitioner's affidavit in support of his request for a certificate of appealability also asserts that he made an earlier attempt to file a notice of appeal, which notice was dismissed for lack of such a certificate. (Id. ¶ 3.) It is clear, therefore, that Petitioner had notice of the judgment dismissing his petition, and his request to reopen the time for appeal is accordingly denied.

Moreover, the petitioner may not appeal an order dismissing a habeas petition to the Court of Appeals unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1) (West 1994 & Supp. 2001). A certificate will be granted, "only if the applicant has made a showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability). The Court finds Petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appeal. Further, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).

IT IS SO ORDERED.

20030319

© 1992-2003 VersusLaw Inc.



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