JOHNSON
v.
SECRETARY, DEPARTMENT OF CORRECTIONS (PINELLAS COUNTY)
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The court held that the petitioner's motion to reopen the appeal period was untimely and therefore denied.
The petitioner's notice of appeal was filed significantly after the deadline. The Eleventh Circuit remanded for the district court to determine if the…
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This matter was remanded by the Eleventh Circuit Court of Appeals to this Court “for the limited purpose of determining whether Appellant Sylvester Johnson merits reopening of the appeal period under Federal Rule of Appellate Procedure 4(a)(6).” (Doc. 58 at docket p. 2). The Court concludes Mr. Johnson does not merit reopening of the appeal period. On July 27, 2022, the Clerk mailed a copy of the July 26, 2022 Order (Doc. 48) denying Mr. Johnson’s habeas petition, the Judgment entered on July 27, 2022 (Doc. 49), and the July 27, 2022 Order (Doc. 51) granting Mr. Johnson’s request for copies to Mr. Johnson. Under Fed.R.App.P. 4(a)(1)(A), the notice of appeal must have been filed within 30 days of the July 27, 2022 Judgment, or on August 26, 2022. Mr. Johnson’s Notice of Appeal was date stamped by his prison November 17, 2022 (Doc. 54). The Eleventh Circuit found the Notice of Appeal was untimely but remanded to determine whether Mr. Johnson merits reopening of the appeal period under Rule 4(a)(6). Under Rule 4(a)(6), the court may reopen the time to file an appeal, for a period of 14 days, if the following conditions are met: (A) the court finds that the moving party did not receive notice of 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 of the entry, whichever is earlier; and (C) the court finds that no party would be prejudiced. Rule 4(a)(6), Fed.R.App.P. Mr. Johnson admits he received notice of the July 26, 2022 final order on October 19, 2022 (Doc. 61 at p. 1). Therefore, he was required to file his motion to reopen the time to appeal within 14 days of that date, or by November 2, 2022. Fed.R.App.P. 4(a)(6)(B). He filed his motion to reopen (within his Notice of Appeal) on November 17, 2022 (Doc. 54).1 Because he did not file the motion to reopen by
November 2, 2022, it is untimely and cannot meet the second condition of Rule
Chakenre-c Aiarda Wo Ts pl el 0 Charlene Edwards Honeywell United States District Judge
Copies furnished to: cc: Sylvester Johnson, pro se Counsel of Record Clerk, 11" Circuit Court of Appeals