The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on Petitioner's Request for a Ruling on His Motion Filed Pursuant to the Provisions of 28 U.S.C. § 2255 Filed April 21, 2004 (d/e 14). For the reasons stated below, this Motion is granted in part.
On February 14, 2001, a jury in the United States District Court for the Central District of Illinois convicted Petitioner Joseph Fleischli (Fleischli) of seven weapons offenses. Cent. Dist. Ill. Case No. 00-30008. Fleischli appealed his convictions to the Court of Appeals for the Seventh Circuit, which affirmed and issued its mandate on November 4, 2002.
United States v. Fleischli, 305 F.3d 643 (7th Cir. 2002). Fleischli then filed a petition for writ of certiorari before the Supreme Court, which the Court denied on April 28, 2003. On April 21, 2004, proceeding pro se, Fleischli filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2255 (d/e 1) in the instant case. A month later, he filed a Motion to Modify (d/e 5) his petition, which was later stricken with leave to refile. On February 1, 2005, Fleischli filed a Supplemental Memorandum in Support of Previous Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (d/e 10). Judge Richard Mills of this Court considered this pleading a Supplemental Petition for Habeas Corpus, apparently a replacement for Fleischli's previously stricken Motion to Modify his petition. On June 2, 2005, the Court issued an Order (d/e 12) denying Fleischli's Supplemental Petition and closed the case.
The Court held that the habeas statute's one-year statute of limitations barred Fleischli's petition, because he had failed to file within a year of the Seventh Circuit's issuance of the mandate on November 4, 2002. The Court's Order did not address the Supreme Court's April 28, 2003, denial of Fleischli's petition for writ of certiorari, however. See Fleischli v. United States, 538 U.S. 1001 (2003).
Moreover, the Court's Order stated that Fleischli's April 21, 2004, Petition had been denied with leave to refile, and thus this Order explicitly denied only Fleischli's February 1, 2005, Supplemental Petition. Yet, the case docket indicates that the Court never denied Fleischli's April 21, 2004, Petition; it only struck (with leave to refile) his May 28, 2004, Motion to Modify. The Court's reading of the statute of limitations would have allowed it to dispense with the initial Petition at the same time it denied the Supplemental Petition, but because it believed that the initial Petition had been denied already, it did not rule on this filing explicitly.
On July 7, 2007, Fleischli filed Petitioner's Request for a Ruling on His Motion Filed Pursuant to the Provisions of 28 U.S.C. § 2255 Filed April 21, 2004 (d/e 14). In this pleading, he argued that the Court had overlooked his Supreme Court petition for writ of certiorari and closed his habeas case without ruling on his initial habeas petition. But Fleischli also alleged that he did not discover these errors for two years because he never received notice of the Court's June 2, 2005, Order. He asserts that he only learned of the Order when his wife came to the federal courthouse in Springfield to inquire about the status of his case.*fn1 By Text Order dated July 25, 2007, this matter was reassigned to this Judge.
Fleischli's arguments have merit. He is correct that the Court never actually ruled on his initial Petition. He is also correct that the Court overlooked his petition for writ of certiorari, which Fleischli also failed to indicate had been filed.*fn2 Thus Judge Mills miscalculated the starting date for the statute of limitations. See Robinson v. United States, 416 F.3d 645, 650 (7th Cir. 2005) (holding that where an inmate files a petition for writ of certiorari, his conviction becomes final for purposes of § 2255 when the Supreme Court denies that petition). Because Fleischli filed his Petition within one year of the Supreme Court's decision, the Court erred in dismissing his habeas petition as time-barred. Ordinarily, Fleischli would have had two options in attempting to correct these errors: he could have appealed the Court's Order to the Seventh Circuit or moved under Federal Rule of Civil Procedure 60(b)(1) in the District Court for relief from judgment based on mistake or inadvertence.
The fact that Fleischli did not learn of the Court's Order for two years, however, makes the ordinary options closed to him now. To appeal a case to which the United States is a party, the appealing party must file a notice of appeal within 60 days after the judgment or order appealed is entered. Fed. R. App. P. 4(a)(1)(B). Clearly Fleischli missed that deadline. The Federal Rules also provide for a reopening of the time to file an appeal where the court finds that the moving party did not receive notice of the entry of judgment or order sought to be appealed within 21 days of entry --which would seem to save Fleischli. Fed. R. App. P. 4(a)(6)(A). Except, even here, the movant must file "within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier." Fed. R. App. P. 4(a)(6)(B). This deadline has passed as well. Finally, Federal Rule of Civil Procedure 60(b)(1) allows courts to relieve a party from an order based on "mistake, inadvertence, surprise, or excusable neglect," but motions under this rule must be made within a year of the order's entry. So, Fleischli cannot take advantage of this rule either.
Even Rule 60(a) will not save his case. The rule, which provides for relief from clerical mistakes no matter when they are discovered, states:
Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.
Fed. R. Civ. P. 60(a). "It is settled that this rule applies only to an error of transcription, copying, or calculation, and not to a fundamental failure of discovery or notification." Bershad v. McDonough, 469 F.2d 1333, 1336 (7th Cir. 1972). Rule 60(a) does not allow a court to correct language that the judge intended the clerk to employ; "Rule 60(a) allows a court to correct records to show what was done, rather than change them to reflect what should have been done." Blue Cross and Blue Shield Ass'n v. Am. Express Co., 467 F.3d 634, 637 (7th Cir. 2006) (emphasis in original). Here, the Court's statement that it previously had denied Fleischli's petition was incorrect, but it was not a transcription, copying, or calculation error; the Court intended the Order to include this statement. The same is true for the Court's conclusion that the Seventh Circuit's issuance of the ...