United States District Court, M.D. Florida, Orlando Division
GREGORY A.PRESNELL UNITED STATES DISTRICT JUDGE
cause is before the Court on the Order of Remand entered by
the Eleventh Circuit Court of Appeals on June 22,
2018. (Doc. 46).
conducting an evidentiary hearing, the Court entered an Order
(Doc. 33) dismissing Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence (“Motion to Vacate, ”
Doc. 1) and a corresponding Judgment (Doc. 34). Petitioner
did not file a notice of appeal, but he later filed a Motion
to Reopen the Time to File An Appeal (“Motion to
Reopen, ” Doc. 36), which the Court denied. (Doc. 40).
Petitioner appealed the denial of the Motion to Reopen, and
the Government filed a Motion to Remand, which the Eleventh
Circuit Court of Appeals granted. (Doc. 46).
Court directed the parties to file memoranda of law and
applicable evidence demonstrating whether the period of time
to file a notice of appeal should be reopened. As a result,
the Government filed a Memorandum of Law (Doc. 48), and
Petitioner filed a Memorandum of Law In Support of Motion to
Reopen Appeal Period Pursuant to Rule 4(a)(6) of Fed. R. App.
P. (Doc. 49).
Court entered its Order (Doc. 33) dismissing Petitioner's
Motion to Vacate on March 3, 2017, and the corresponding
Judgment (Doc. 34) was dated March 6, 2017. On August 31,
2017,  Petitioner filed the Motion To Reopen,
requesting that he be permitted to pursue a belated appeal.
Petitioner stated that his counsel failed to provide him with
copies of the March 3, 2017, Order and the Judgment and that,
on August 16, 2017, he filed a Notice of Inquiry (Doc. 35)
seeking information about the status of the case. (Doc. 36 at
2). On August 16, 2017, the Clerk's Office sent
Petitioner a copy of the Order and Judgment. (Doc. 35). It
appears that this is the means by which Petitioner was first
notified of the Court's entry of judgment against him.
requested the Court “reopen the time to file an appeal
since the court may reopen the time to file an appeal for a
period of 14 days after the date when it's [sic] order to
reopen is entered because all the following conditions are
met.” (Doc. 36 at 2). The Court denied the Motion to
Reopen because more than 180 days had elapsed since the
Judgment was entered. (Doc. 40 at 3).
exclusive avenue for seeking such relief is under Federal
Rule of Appellate Procedure 4(a)(6). See Vencor
Hospitals, Inc. v. Standard Life and Accident Insurance
Co., 279 F.3d 1306, 1311 (11th Cir. 2002)
(“we conclude Rule 4(a)(6) provides the exclusive
method for extending a party's time to appeal for failure
to receive actual notice that a judgment or order has been
entered.”). Rule 4(a)(6) provides as follows:
(6) Reopening 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;
(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 ...