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Donado v. Hardy

October 5, 2011

DONADO
v.
HARDY



Name of Assigned Judge Robert M. Dow, Jr. Sitting Judge if Other or Magistrate Judge than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

For the reasons set forth below, Petitioner's motion to file late notice of appeal [41] is respectfully denied and Petitioner's motion for leave to appeal in forma pauperis [43] is denied as moot. In addition, pursuant to Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts and Fed. R. Civ. P. 25(d)(1), Stateville Warden Marcus Hardy should be substituted in place of Pontiac Warden Guy Pierce as the Respondent in this case.

O[ For further details see text below.] Docketing to mail notices.Notices mailed by Judicial staff.

STATEMENT

I. Background

This matter concerns Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed on November 28, 2008. At the time that Petitioner filed his § 2254 petition, he was represented by counsel. After Respondent answered and Petitioner replied, the Court entered an order directing Petitioner to either (1) move to stay his federal habeas petition so that he could exhaust one of his unexhausted grounds of his ineffective assistance of trial counsel claim in state court, or (2) notify the Court that he wished to withdraw that ground from his federal habeas petition. Petitioner then moved to "temporarily withdraw without prejudice" his federal habeas petition "in its entirety." Respondent then notified the Court that the proceedings on Petitioner's unexhausted ground had concluded and that ground, though exhausted, was now procedurally defaulted. Respondent also noted that if Petitioner's habeas petition was dismissed without prejudice, absent a stay, a re-filed petition would be untimely under § 2244(d)(1)(A) because the filing of a § 2254 petition does not toll the statute of limitations. Following a hearing, the Court denied Petitioner's motion to withdraw as moot.

On February 1, 2011, the Court entered an order dismissing Petitioner's federal habeas petition with prejudice. Petitioner had 30 days from the date that order was entered-until March 3, 2011-to file a timely notice of appeal. SeeFed. R. App. P. 4(a)(1)(A). Petitioner (pro se) filed his notice of appeal on July 27, 2011. On August 1, 2011, Petitioner also filed a motion for leave to file a late notice of appeal and a request for a certificate of appealability. Petitioner's motion states that his counsel did not inform him that this Court dismissed his petition on February 1, 2011, and that he did not learn of the dismissal until July 25, 2011. However, counsel for Petitioner maintains that while she is not sure if she received a copy of the Court's opinion (she was moving offices at the time), she was informed when the writ for habeas corpus was denied and she in turn informed Petitioner and also informed Petitioner that he had no basis to file an appeal.

On August 4, 2011, the Clerk's office transmitted the record on appeal to the Court of Appeals, which docketed Petitioner's appeal. On the same date, the Seventh Circuit ordered Petitioner to file a jurisdictional memorandum stating why his appeal should not be dismissed for lack of jurisdiction. On August 14, 2011, Petitioner mailed a "jurisdictional memorandum" to this Court, stating that he called his attorney on July 25, 2011 and was informed by his attorney's secretary that his attorney no longer represented him. Petitioner alleges that up until that point, he believed that proceedings on his federal habeas petition had been stayed.

II. Analysis

As the Court noted in its August 17, 2011 order, it is too late for Petitioner to file a notice of appeal under Federal Rule of Appellate Procedure (FRAP) 4(a)(1)(A). FRAP 4 provides two avenues by which parties may seek to extend the time to file a notice of appeal. The first is through FRAP 4(a)(5) which allows the district court to extend the time to file a notice of appeal if (i) "a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires;" and (ii) "regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause." Fed. R. App. P. 4(a)(5). It also is too late to request an extension of time to file a notice of appeal under this Rule because Petitioner's notice of appeal was filed more than 30 days after the time prescribed by FRAP 4(a) expired on March 3, 2011-30 days after the Court entered its order dismissing the petition with prejudice. See Fed. R. App. P. 4(a)(1)(A). Therefore, to move for an extension of time under FRAP 4(a)(5), Petitioner had to file his motion no later than April 2, 2011-30 days after the time prescribed by Rule 4(a) expired. However, Petitioner did not file his notice of appeal until July 27, 2011.

The second option is through FRAP 4(a)(6), which permits the district court to reopen the time for filing a notice of appeal for 14 days after the date when an order to reopen is entered provided that the following conditions are met: (i) "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";

(ii) "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 (iii) "the court finds that no party would be prejudiced." Fed. R. App. P. 4(a)(6).

On February 1, 2011, the Court issued a memorandum opinion and order denying Petitioner's ยง 2254 petition. On that same date, a Rule 58 judgment order was entered and a "notification of docket entry" was prepared advising the parties of the Court's opinion and order denying Petitioner's habeas petition and sending notice of judgment pursuant to Rule 77(d) of the Federal Rules of Civil Procedure. On that date, Respondent's counsel received notice of these documents electronically. Because Petitioner's counsel was not a registered user of the CM/ECF system, the electronic notification of the Court's opinion and the Rule 58 judgment noted that on February 1, 2011, notice of these documents were "delivered by other means" to Petitioner's counsel. In her reply, Petitioner's counsel states that "she believes she did not receive the thirty-eight page opinion of the court denying petitioner's writ for habeas corpus." However, she concedes that she was informed of the denial of his petition and that she in turn informed Petitioner of the denial and also informed Petitioner that he had no basis to file an appeal because his claim was "weak." As explained in footnote 2 below, the ...


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