Cordon v. Greiner, 00 Civ. 8927(WK).

• Decision Date: 29 July 2003
• Docket Number: No. 00 Civ. 8927(WK).,00 Civ. 8927(WK).
• Parties: Corneal CORDON, Petitioner, v. Charles GREINER, Respondent.
• Court: U.S. District Court — Southern District of New York

274 F.Supp.2d 434

Corneal CORDON, Petitioner, v. Charles GREINER, Respondent.

No. 00 Civ. 8927(WK).

United States District Court, S.D. New York.

July 29, 2003.

COPYRIGHT MATERIAL OMITTED

Corneal Cordon, New York, pro se.

Nicola N. Grey, Assistant Attorney General, Office of the Attorney General of the State of New York, New York, NY, for Respondent.

OPINION & ORDER

KNAPP, Senior District Judge.

After we denied his petition for a writ of habeas corpus, Petitioner Corneal Cordon ("Petitioner" or "Cordon"), proceeding pro se, failed timely to file a notice of appeal within 30 days of the entry of a separate judgment on the docket. However, the Petitioner eventually submitted a late notice of appeal. In both that notice and an accompanying letter, he contends that he should be allowed to proceed with his untimely appeal because he did not receive a copy of our order denying his petition within 30 days of its entry on the docket. We construe the Petitioner's late notice of appeal as well the accompanying letter as a motion brought pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure. For the reasons that follow, we hereby GRANT that motion.

BACKGROUND

On July 9, 2001, we issued a Memorandum and Order denying Cordon's petition for a writ of habeas corpus. See Cordon v. Greiner, No. 00 Civ. 8927(WK), 2001 WL 775962, at *6 (S.D.N.Y. July 9, 2001). The Clerk of the Court ("Clerk") filed that Memorandum and Order on July 11, 2001, and thereafter entered the Memorandum and Order on the docket on July 12, 2001. (See Docket No. 9.)

The Court of Appeals for the Second Circuit has held that a separate judgment must be entered after a district court denies a habeas petition predicated on 28 U.S.C. § 2254. Kaplan v. Bombard, 573 F.2d 708, 711 n. 2 (2d Cir.1978). In conformance with this principle, the Clerk's office issued and filed the requisite separate Judgment on July 13, 2001. (See Docket No. 10.) The Clerk's office entered that Judgment on the docket on July 16, 2001. (Id.)

"In a habeas corpus proceeding ..., the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held." 28 U.S.C. § 2253(a). A party has 30 days after a separate judgment is entered to appeal from the denial of a petition for a writ of habeas corpus in a § 2254 proceeding. See Latella v. Jackson, 817 F.2d 12, 12 (2d Cir.1987), cert. denied 484 U.S. 1010, 108 S.Ct. 708, 98 L.Ed.2d 658 (1988); Mizell v. Attorney General of the State of New York, 586 F.2d 942, 944 n. 2 (2d Cir.1978), cert. denied 440 U.S. 967, 99 S.Ct. 1519, 59 L.Ed.2d 783 (1979) (citing Fed.R.App.P. 4(a)).¹ In this case, where the Clerk's office entered the Judgment on the docket on July 16, 2001, the Petitioner's time to file a notice of appeal therefrom expired on August 15, 2001.² He did not file a notice of appeal on or before that date and thereby:failed to comply with the applicable deadline enumerated in Rule 4(a) of the Federal Rules of Appellate Procedure. See Fed.RApp.P. 4(a)(1)(A) ("In a civil case ... the notice of appeal ... must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.").

On September 7, 2001, the Petitioner wrote a letter to this Court in which he indicated that he had not received a copy of the Court's July 9, 2001, "order" until August 22, 2001. (See Letter from Corneal Cordon to the Court of 09/07/01 ("Cordon Letter") at 1.) We issued only one "order" on July 9, 2001: the Memorandum and Order denying Cordon's habeas petition. (See Docket No. 9.)

In other words, the Petitioner contends that he did not receive our Memorandum and Order denying his petition until after his time to file a notice of appeal had already expired. In light of this consideration, he suggests that it "was not the fault of the [P]etitioner that he is late in submitting his notice of appeal." (Cordon Letter at 1.) The Petitioner therefore argues that he should "not be precluded from going forward" with his appeal therefrom. (Id.)

Along with his letter, the Petitioner enclosed a completed, albeit late, notice of appeal. (See id. at 2.) In that notice, the Petitioner once again explained that he had not received a copy of our Memorandum and Order until August 22, 201. (See id.) He also enclosed a copy of the envelope in which he received our Memorandum and Order denying his petition. (See id. at 3.)

The Petitioner's allegations regarding his receipt of the Memorandum and Order were corroborated by the aforementioned envelope. We sent a copy of the July 9, 2001, Memorandum and Order to the Petitioner at the Green Haven Correctional Facility directly from our chambers; the postmark on the envelope demonstrates that we did so on August 16, 2001. (See id.) In addition, the postmark further reflects that this envelope (and, presumably, the Memorandum and Order therein) arrived at the facility on August 22, 2001. (See id.)

In his letter, the Petitioner focused exclusively on his receipt of our July 9, 2001, Memorandum and Order. He never explained whether or not he received a copy of the separate Judgment which the Clerk's office issued and filed on July 13, 2001. Nonetheless, the notation next to the Judgment's docket entry indicates that copies of the Judgment were mailed to the parties. (See Docket No. 10.) According to the Clerk's office, this notation suggests that the office mailed copies of the Judgment to the Petitioner on the same date that the Judgment was entered on the docket, namely on July 16, 2001, in accordance with the office's usual practice.³

In an effort to clarify whether he received notice of the entry of the separate Judgment, we issued an order wherein we stated that:

Although the Petitioner has submitted information with respect to his receipt of the Memorandum and Order, he has offered no information as of yet about his receipt of the Judgment. Accordingly, the Petitioner is hereby directed to submit a sworn affidavit discussing his receipt of the Judgment. In that affidavit, the Petitioner should explain whether he ever received a copy of the Judgment. If the Petitioner indicates that he did receive a copy of the Judgment, then he should also (a) inform us of the date on which he received that copy and (b) describe, to the extent he can recall, the factual circumstances of his receipt of that Judgment. In order to ensure that the Petitioner is not mistaken about which document we are referring to by the term "Judgment," we will enclose a copy of that Judgment when we send the Petitioner a copy of this order.

Cordon v. Greiner, No. 00 Civ. 8927(WK), 2002 WL 31842669, at *2 (S.D.N.Y. Dec. 17, 2002). When the Petitioner subsequently submitted an affidavit as directed, he once again focused almost exclusively on his receipt of the July 9, 2001, Memorandum and Order. (See Affidavit of Corneal Cordon ("Cordon Aff.") ¶¶ 3-6.) While the Petitioner briefly referred to "other documents" in his affidavit, (see Cordon Aff. ¶ 7), he merely indicated that he could not obtain any evidence that would show when "he actually received other documents." (See Cordon Aff. ¶¶ 7-10.)

After we reviewed the Petitioner's affidavit, we asked counsel for Respondent Charles Greiner ("Respondent") to investigate, to the extent possible, through correctional officials whether the Petitioner had received a copy of the separate Judgment. Cf. Henderson v. Frank, 155 F.3d 159, 164 (3d Cir.1998) (quoting In re Flanagan, 999 F.2d 753, 757 (3d Cir.1993)) ("`[P]rison authorities are in a position to easily show when a document was received ... under established procedures for recording the date and time at which papers are received by prison officials in the prison's mail room.'"); United States v. Grana, 864 F.2d 312, 316 (3d Cir.1989) ("The prison ... [is] the party with the best and perhaps only access to the evidence needed to resolve such questions."). The Assistant Attorney General admirably contacted the Green Haven Correctional Facility "for a list of dates in the Summer of 2001 when [the P]etitioner received legal mail." (Affirmation of Nicola Grey ("Grey Affirmation") ¶ 2.) When "inmate legal mail is received" at Green Haven, a "log sheet" is apparently "created for each block." (Grey Affirmation ¶ 3.) These log sheets contain the name, Department Identification Number, and cell assignment for each inmate receiving legal mail. (Id.) When an inmate receives such correspondence, he must sign the log sheet and thereby acknowledge his receipt of the legal mail. (Id.)

Upon reviewing the relevant records, Green Haven officials advised the Assistant Attorney General that the Petitioner had not received any legal mail in July 2001. (Grey Affirmation ¶ 4.) In contrast, the Petitioner did receive legal mail in August 2001. (See id.) However, the only such item of legal mail received by the Petitioner arrived on August 22, 2001, (see Letter of Nicola N. Grey to the Court of 07/15/03 ("Grey Letter")), which corroborates nothing more than that he received our July 9, 2001, Memorandum and Order on that date. (See Grey Affirmation ¶ 4.) In short, Green Haven's log sheets do not suggest that the Petitioner received a copy of the separate Judgment in July 2001 or August 2001. As such, the Respondent's counsel has advised us that she is unable to confirm that the Petitioner received notice of the entry of that Judgment.

DISCUSSION

I. Motion To Reopen The Time To File An Appeal

Where a pro se litigant submits a late notice of appeal and alleges that he did not receive notice of the entry of the judgment or order from which he seeks to appeal within 21 days of its entry, that notice should be treated as a motion to reopen the time to file an appeal in accordance with Rule 4(a)(6) of the Federal Rules of Appellate Procedure. Sanders v. United States, 113 F.3d 184, 187 (11th Cir. 1997); Ogden v. San Juan County, 32 F.3d 452, 454 (10th Cir.1994), cert. denied 513 U.S....