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Trento v. Dennison

February 13, 2008

CHARLES TRENTO, PETITIONER,
v.
CHAIRMAN ROBERT DENNISON NEW YORK STATE DIVISION OF PAROLE, RESPONDENT.



The opinion of the court was delivered by: P. Kevin Castel, U.S.D.J.

MEMORANDUM AND ORDER

In an order and judgment both dated and entered on the Court's civil docket on October 15, 2007, the petition for a writ of habeas corpus was denied. A.S. Goldmen, Inc. v. Phillips, 2007 WL 2994453, 05 Civ. 5496 (PKC) (AJP) (S.D.N.Y. Oct. 15, 2007). At the same time, the Court issued a certificate of appealability as to the state court harmless error review on the Crawford issue. Id. On January 23, 2008, Petitioner filed a pro se submission styled as a "Motion to File a Late Notice of Appeal" ("Motion"). Petitioner has attached to his motion a completed motion form for relief under Fed. R. App. P. 4(a)(5) that is distributed by the Court's Pro Se Office. Granting Petitioner's pro se motion the liberal interpretation that it is due, see Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), the Court construes Petitioner's motion to be a motion for an extension of time to file a notice of appeal, brought under Fed. R. App. P. 4(a)(5), and in the alternative, a motion to repoen the time to file a notice of appeal, brought under Fed. R. App. P. 4(a)(6). For the following reasons, however, Petitioner's motion, to the extent it is brought under either Fed. R. App. P. 4(a)(5) or 4(a)(6), is denied.

DISCUSSION

Fed. R. App. P. 4(a)(5)

Under Fed. R. App. P. 4(a)(5), in an action wherein the United States or its officer or agency is not a party, a motion for an extension of time to file a notice of appeal must be filed no later than 30 days after the expiration of the 30-day period in which to file a notice of appeal. Fed. R. App. P. 4(a)(1)(A), (5)(A)(i). Orders and judgments dismissing an action are to be set forth on separate documents under Fed. R. Civ. P. 58(a), and are considered entered for the purposes of Fed. R. App. 4(a) when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs:

* the judgment or order is set forth on a separate document, or

* 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a).

Fed. R. App. P. 4(a)(7)(A)(ii). The Court, however, "lacks [the subject matter] jurisdiction to grant any extension motion that is not filed within Rule 4(a)(5)'s 30-day 'grace period.'" Cohen v. Empire Blue Cross & Blue Shield, 142 F.3d 116, 118 (2d Cir. 1998) (per curiam). The above-mentioned order and judgment were both entered, as separate documents, on the Court's civil docket on October 15, 2007, pursuant to Fed. R. Civ. P. 79(a). Petitioner alleges that his attorney of record during this action did not receive the Court's October 15, 2007 order until November 30, 2007.*fn1 Under Fed. R. App. P. 4(a)(1)(A), Petitioner had until November 14, 2007 to file a timely notice of appeal. Thus, under Fed. R. App. P. 4(a)(5)(A)(i), Petitioner had until December 14, 2007 to file a timely motion for an extension of time to file a notice of appeal.

As discussed above, Petitioner did not file his motion until January 23, 2008. Thus, this motion, to the extent it is brought under Fed. R. App. P. 4(a)(5), is untimely and the Court lacks the discretion to grant the motion. See Cohen, 142 F.3d at 118. Therefore, to the extent Petitioner brings a motion under Fed. R. App. P. 4(a)(5), the motion is denied.

Fed. R. App. P. 4(a)(6)

Fed. R. App. P. 4(a)(6), provides that a district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:

(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;

(B) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice under Federal Rule of Civil Procedure ...


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