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CORDON v. GREINER

July 29, 2003

CORNEAL CORDON, PETITIONER, AGAINST CHARLES GREINER, RESPONDENT


The opinion of the court was delivered by: Whitman Knapp, Senior District Judge

OPINION & ORDER

After we denied his petition for a writ of habeas corpus, Petitioner Corneal Cordon ("Petitioner" or "Cordon"), proceeding pro se, failed timely to file a notice of appeal within 30 days of the entry of a separate judgment on the docket. However, the Petitioner eventually submitted a late notice of appeal. In both that notice and an accompanying letter, he contends that he should be allowed to proceed with his untimely appeal because he did not receive a copy of our order denying his petition within 30 days of its entry on the docket. We construe the Petitioner's late notice of appeal as well the accompanying letter as a motion brought pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure. For the reasons that follow, we hereby GRANT that motion.

BACKGROUND

On July 9, 2001, we issued a Memorandum and Order denying Cordon's petition for a writ of habeas corpus. See Cordon v. Greiner (S.D.N.Y. July 9, 2001) No. 00 Civ. 8927 (WK), 2001 WL 775962, at *6. The Clerk of the Court ("Clerk") filed that Memorandum and Order on July 11, 2001, and thereafter entered the Memorandum and Order on the docket on July 12, 2001. [ Page 2]

(See Docket No. 9.)

The Court of Appeals for the Second Circuit has held that a separate judgment must be entered after a district court denies a habeas petition predicated on 28 U.S.C. § 2254. Kaplan v. Bombard (2d Cir. 1978) 573 F.2d 708, 711 n. 2. In conformance with this principle, the Clerk's office issued and filed the requisite separate Judgment on July 13, 2001. (See Docket No. 10.) The Clerk's office entered that Judgment on the docket on July 16, 2001. (Id.)

"In a habeas corpus proceeding . . ., the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held." 28 U.S.C. § 2253(a). A party has 30 days after a separate judgment is entered to appeal from the denial of a petition for a writ of habeas corpus in a § 2254 proceeding. See Latella v. Jackson (2d Cir. 1987) 817 F.2d 12, 12, cert. denied (1988) 484 U.S. 1010; Mizell v. Attorney General of the State of New York (2d Cir. 1978) 586 F.2d 942, 944 n. 2, cert. denied (1979) 440 U.S. 967 (citing Fed.R.App.P. 4(a)).*fn1 In this case, where the Clerk's office entered the Judgment on the docket on July 16, 2001, the [ Page 3]

Petitioner's time to file a notice of appeal therefrom expired on August 15, 2001.*fn2 He did not file a notice of appeal on or before that date and thereby failed to comply with the applicable deadline enumerated in Rule 4(a) of the Federal Rules of Appellate Procedure. See Fed.R.App.P. 4(a)(1)(A) ("In a civil case . . . the notice of appeal . . . must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.").

On September 7, 2001, the Petitioner wrote a letter to this Court in which he indicated that he had not received a copy of the Court's July 9, 2001, "order" until August 22, 2001. (See Letter from Corneal Cordon to the Court of 09/07/01 ("Cordon Letter") at 1.) We issued only one "order" on July 9, 2001: the Memorandum and Order denying Cordon's habeas petition. (See Docket No. 9.)

In other words, the Petitioner contends that he did not receive our Memorandum and [ Page 4]

Order denying his petition until after his time to file a notice of appeal had already expired. In light of this consideration, he suggests that it "was not the fault of the [P]etitioner that he is late in submitting his notice of appeal." (Cordon Letter at 1.) The Petitioner therefore argues that he should "not be precluded from going forward" with his appeal therefrom. (Id.)

Along with his letter, the Petitioner enclosed a completed, albeit late, notice of appeal. (See id. at 2.) In that notice, the Petitioner once again explained that he had not received a copy of our Memorandum and Order until August 22, 201. (See id.) He also enclosed a copy of the envelope in which he received our Memorandum and Order denying his petition. (See id. at 3.)

The Petitioner's allegations regarding his receipt of the Memorandum and Order were corroborated by the aforementioned envelope. We sent a copy of the July 9, 2001, Memorandum and Order to the Petitioner at the Green Haven Correctional Facility directly from our chambers; the postmark on the envelope demonstrates that we did so on August 16, 2001. (See id.) In addition, the postmark further reflects that this envelope (and, presumably, the Memorandum and Order therein) arrived at the facility on August 22, 2001. (See id.)

In his letter, the Petitioner focused exclusively on his receipt of our July 9, 2001, Memorandum and Order. He never explained whether or not he received a copy of the separate Judgment which the Clerk's office issued and filed on July 13, 2001. Nonetheless, the notation next to the Judgment's docket entry indicates that copies of the Judgment were mailed to the parties. (See Docket No. 10.) According to the Clerk's office, this notation suggests that the office mailed copies of the Judgment to the Petitioner on the same date that the Judgment was [ Page 5]

entered on the docket, namely on July 16, 2001, in accordance with the office's usual practice.*fn3

In an effort to clarify whether he received notice of the entry of the separate Judgment, we issued an ...


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