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United States v. Weekly

United States District Court, W.D. Arkansas

October 11, 2018

UNITED STATES OF AMERICA RESPONDENT
v.
ALVIN WEEKLY PETITIONER

          ORDER

          Susan O. Hickey United States District Judge

         Before 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.

         I. BACKGROUND

         On 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).

         On 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.

         On September 26, 2018, Petitioner filed the instant “petition of certificate of appealability” with the Eighth Circuit.[1] (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.

         II. DISCUSSION

         Generally, 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:

         The 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;[2]
(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).

         The 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 ...


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