United States District Court, W.D. Arkansas
O. Hickey United States District Judge
the Court is Petitioner Alvin Weekly's Petition of
Certificate of Appealability. (ECF No. 1990). The Court finds
that no response is necessary. The Court finds the matter
ripe for consideration.
November 1, 2012, the Court sentenced Petitioner to 140
months' imprisonment; 6 years' supervised release;
and a $100 special assessment. (ECF No. 967). On October 9,
2013, Petitioner filed a motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. (ECF
No. 1275). On April 30, 2015, the Court adopted a Report and
Recommendation and denied Petitioner's section 2255
motion. (ECF No. 1518).
November 30, 2017, Petitioner filed a motion to correct his
sentence under Rule 60(b). On June 27, 2018, the Court
adopted a Report and Recommendation and denied
Petitioner's Rule 60(b) motion as an improperly filed
successive section 2255 motion. (ECF No. 1884). The
Court's June 27, 2018 order also declined to issue a
certificate of appealability. Petitioner did not file a
notice of appeal within sixty days of the entry of the
Court's June 27, 2018 order.
September 26, 2018, Petitioner filed the instant
“petition of certificate of appealability” with
the Eighth Circuit. (ECF No. 1990). Petitioner asks the Eighth
Circuit to issue a certificate of appealability based on this
Court's failure “to give proper notice to
[Petitioner] that [his Rule 60(b)] motion was denied in order
for [him] to adequately file an appeal.” (ECF No.
1990). On October 10, 2018, the Eighth Circuit filed an order
construing the petition as a motion to reopen the time for
filing an appeal pursuant to Federal Rule of Appellate
Procedure 4(a)(6). Accordingly, the Eighth Circuit remanded
the case to this Court to determine whether the requirements
of Rule 4(a)(6) have been met, advising that Petitioner's
appeal would be held in abeyance until the Court issues a
ruling on the instant motion.
parties must file a notice of appeal within thirty days of
entry of the judgment or order being appealed. Fed. R. App.
P. 4(a)(1)(A). However, in cases where the United States is a
party, parties have sixty days from the date of judgment to
file a notice of appeal. Fed. R. App. P. 4(a)(1)(B).
Additionally, there are certain exceptions to these time
limits, including an exception that allows a party to move to
reopen the time to file an appeal:
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
(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 14 days after the moving party
receives notice under Federal Rule of Civil Procedure 77(d)
of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.
Fed. R. App. P. 4(a)(6) (footnote added). Courts have
discretion to reopen the time to file an appeal only if all
three conditions are satisfied. Zimmer St. Louis, Inc. v.
Zimmer Co., 32 F.3d 357, 361 (8th Cir. 1994).
Court finds that the second and third factors contemplated by
Rule 4(a)(6) are satisfied. The order Petitioner seeks to
appeal was entered by the Court on June 27, 2018. Petitioner
filed the instant motion on September 26, 2018, well within
180 days of June 27, 2018. Moreover, the Court finds that no
party would be prejudiced by reopening Petitioner's time
to file an appeal. Accordingly, the only question before the