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D'Angelo v. United States

United States District Court, D. Maine

November 12, 2019

MICHEL D'ANGELO, Petitioner
v.
UNITED STATES OF AMERICA, Respondent

          ORDER ON PETITIONER'S MOTION TO REOPEN TIME TO APPEAL

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE

         On October 12, 2018, the Court affirmed the Recommended Decision on Petitioner's motion for relief pursuant to 28 U.S.C. § 2255 and dismissed Petitioner's motion with prejudice. (Order, ECF No. 281.) More than a year later, on October 25, 2019, Petitioner filed a notice of appeal and a document the Court construed as a motion to reopen the time to file an appeal. (Motion, ECF No. 283.) In his filing, Petitioner contends he had been in a special housing unit in prison and did not learn of the Court's dismissal of the section 2255 motion until the date of his motion - October 20, 2019. (Motion at 1.)

         Petitioner's motion is governed by Federal Rule of Appellate Procedure 4(a)(6), which provides:

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;
(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.[1]

         Rule 4(a)(6) establishes an ‘outer limit' of 180 days for the filing of [a motion to reopen].” Couture v. United States, 620 F.Supp.2d 155, 157 (D. Mass. May 15, 2009) (denying request to reopen the time to file appeal of dismissal of 28 U.S.C. § 2255 motion); see also, Hudson v. Dipaolo, 179 Fed. App'x 705 (1st Cir. 2006) (denying request to reopen after 180 days in prisoner §1983 case).[2] In this case, Petitioner filed his request more than 180 days from the entry of judgment. Accordingly, the Court denies Petitioner's motion to reopen the appeal period.

         NOTICE

         Any objections to this Order shall be filed in accordance with Federal Rule of Civil Procedure 72.

---------

Notes:

[1] Rule 4(a)(6) is in accord with 28 U.S.C. ยง 2107(c), which ...


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