United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge
se petitioner Edwin Mulligan (“Mulligan” or
“Petitioner”), an inmate in the custody of the
New York State Department of Corrections and Community
Supervision, filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. This Court denied THE
request for a writ of habeas corpus, denied a certificate of
appealability, and dismissed the petition on October 26, 2016
(Dkt #11). Judgment was entered on October 27, 2016 (Dkt
subsequently filed a Motion for Extension of Time to File a
Notice of Appeal dated and signed January 25, 2017 (Dkt #13,
p. 1 of 5), with an attached Notice of Appeal (Dkt #13, p. 2
of 5), a letter to the Second Circuit Court of Appeals dated
January 2, 2017 (Dkt #13, p. 3 of 5), and an enclosure letter
to the Clerk of Court of the Western District of New York
dated January 28, 2017 (Dkt #13, p. 4 of 5). “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).” Trento v. Dennison,
No. 05 CIV. 5496 PKC, 2008 WL 400921, at *1 (S.D.N.Y. Feb.
14, 2008). For the following reasons, however, the Court
cannot grant relief to Petitioner under either Fed. R. App.
P. 4(a)(5) or 4(a)(6).
strict timelines circumscribe the district court's
ability to grant extensions of time to file notices of
appeal. See Endicott Johnson Corp. v. Liberty Mut. Ins.
Co., 116 F.3d 53, 56 (2d Cir. 1997). In a civil case
such as Mulligan's petition under 28 U.S.C. § 2254,
“the notice of appeal . . . must be filed with the
district clerk within 30 days after entry of the
judgment or order appealed from.” Fed. R. App. P.
4(a)(1)(A). The requirements of Federal Rule of Appellate
Procedure (“F.R.A.P.”) 4(a) are “mandatory
and jurisdictional.” Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 61 (1982) (per
curiam) (quotation omitted).
civil action in which 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. See 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 Federal Rule of
Civil Procedure (“F.R.C.P.”) 58(a), and are
considered entered for the purposes of F.R.A.P. 4(a) when the
judgment or order is entered in the civil docket under
F.R.C.P. 79(a) and when the earlier of these two 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 F.R.C.P. 79(a). See
Fed. R. App. P. 4(a)(7)(A)(ii). However, a court “lacks
[the subject matter] jurisdiction to grant any extension
motion that is not filed within [F.R.A.P.] 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 order dismissing the petition and the judgment in favor
of Respondent were both entered, as separate documents, on
the Court's civil docket on October 26, 2016, and October
27, 2016, respectively, pursuant to F.R.C.P. 79(a).
Petitioner therefore had until 30 days from October 27, 2016,
to file his notice of appeal. However, since 30 calendar days
ended on November 26, 2016, was a Saturday, Petitioner would
have had until Monday, November 28, 2016, to file his notice
of appeal in which to file a notice of appeal. See
Fed. R. App. P. 26(a)(1)(C) (“When the period is stated
in days or a longer unit of time . . . include the last day
of the period, but if the last day is a Saturday, Sunday, or
legal holiday, the period continues to run until the end of
the next day that is not a Saturday, Sunday, or legal
holiday.”); see also Jones v. Walsh, No. 06
CIV. 225 (JGK), 2008 WL 586270, at *1 (S.D.N.Y. Mar. 4,
2008). Therefore, under F.R.A.P. 4(a)(5)(A)(i), Petitioner
had 30 days from November 28, 2016, to file a motion for an
extension of time to file a notice of appeal. Thirty days
from November 28, 2016, was Wednesday, December 28, 2016.
Court now must determine the date of filing of
Petitioner's motion for an extension of time.
Petitioner's motion was received by this Court on January
30, 2017, but his motion was signed and dated January 25,
2017, and the enclosure letter was dated January 28, 2017.
The prison mailbox rule, applicable to incarcerated, pro
se litigants, has been extended to the filing of notices
of appeal by habeas petitioners. See Noble v. Kelly,
246 F.3d 93 (2d Cir. 2001) (holding that a prisoner appearing
pro se satisfies the time limit for filing a notice
of appeal if he delivers the notice to prison officials
within the time specified; this “prison mailbox
rule” is justified by the litigant's dependence on
the prison mail system and lack of counsel to assure timely
filing with the court). Here, Petitioner dated his motion on
January 25, 2017, but apparently did not mail it until
January 28, 2017, at the earliest, since that is the date he
signed the enclosure letter to the Clerk of this Court.
Therefore, the Court finds the date of filing for purposes of
the analysis under F.R.A.P. 4(a)(5) is January 28, 2017.
Petitioner's motion for an extension of time to file a
notice of appeal, filed on January 28, 2017, is untimely by
31 days. Even using January 25, 2017, as the applicable
filing date, the instant motion is still untimely by 28 days.
Petitioner's motion, to the extent it is brought under
F.R.A.P. 4(a)(5), is untimely, and the Court lacks the
discretion to grant the motion. Cohen, 142 F.3d at
118 (citing, inter alia, Endicott Johnson Corp.
v. Liberty Mut. Ins. Co., 116 F.3d 53, 56 (2d Cir. 1997)
(“Nor is the court authorized to grant a motion that
was filed beyond the 30-day extension period [in F.R.A.P.
4(a)(6) provides in relevant part 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 ...