United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge.
Terry Wayne Cope, a federal prisoner proceeding pro se, has
moved for an extension of time in which to file notice of
appeal [DE 557]. Cope's motion for an extension of time
to file notice of appeal [DE 557] is DENIED
because Cope has failed to demonstrate good cause or
excusable neglect that would justify an extension for filing
notice of appeal.
February 7, 2007, the Court denied Cope's motion for
habeas relief [DE 327] but granted a limited certificate of
appealability related to his claim that counsel was
ineffective for failing to investigate his alibi defense [DE
331]. The United States Court of Appeals for the Sixth
Circuit affirmed the district court's judgment on July
13, 2010, [DE 370]. Then, on March 14, 2016, Cope moved to
reopen his § 2255 motion, citing a continuing challenge
to physical evidence and testimony that was offered at his
trial. [DE 453]. The district court denied Cope's motion
on June 8, 2016. [DE 470].
September 8, 2017, seven years after the Court denied his
initial § 2255 motion, Cope has filed a series of
motions to correct alleged errors in that decision, reopen
the proceedings, and to reconsider an order requiring that
seized money be applied toward his restitution. [DE 526; DE
527; DE 535; and DE 538]. On October 2, 2018, the Court
denied these motions, finding that there was no factual or
legal basis supporting Cope's claim that the seized money
should have been distributed to his ex-wife, whom he owes
child support. [DE 549]. Additionally, the Court found that
his motions to reconsider under Rule 60 constituted
substantive attacks on the evidence and the Court's
conclusions of law and that, in any event, the motions were
on October 30, 2018,  Cope filed a motion to alter or amend
judgment, styled as a motion to reconsider, under Rule 59(e).
[DE 552]. The Court denied the motion to alter or amend on
December 3, 2018. [DE 555].
almost two months later, Cope has moved for an extension of
time to file notice of appeal [DE 557], asserting that he has
been unable to file a timely notice of appeal due to
occasional prison law library closures as a result of the
holidays and the partial lapse in government appropriations.
4(a)(5)(A) of the Federal Rules of Appellate Procedure 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 . .
. that party shows excusable neglect or good cause.”
Additionally, in the Sixth Circuit, it is “well settled
that leave to file an untimely notice of appeal is to be
granted only in unique or extraordinary circumstances.”
Marsh v. Richardson, 873 F.2d 129, 130 (6th Cir.
Timeliness of Motion for Extension of Time
Cope's motion for an extension of time to file notice of
appeal is timely because it was filed prior to the expiration
of the time prescribed by Rule 4(a). Under Rule
4(a)(1)(B)(i), in a case like this one, “[t]he notice
of appeal may be filed by any party within 60 days after
entry of the judgment or order appealed from if one of the
parties is: (i) the United States.” Additionally, under
Rule 4(a)(4)(A)(iv), if a party files a timely motion under
Federal Rule of Civil Procedure 59, “the time to file
an appeal runs for all parties from the entry of the order
disposing of the last such remaining motion.”
result, Cope is correct that the sixty-day time period to
file notice of appeal began running on December 3, 2018, when
the Court entered an order denying Cope's motion to
reconsider under Rule 59(e). [DE 555; see DE 557, at
1 n.1, Pg ID 1006].
Rule 26(1)(A), the day triggering the period, here December
3, 2018, is excluded. Pursuant to Rule 26(a)(1)(B), the Court
must count every day, including all intermediate Saturdays,
Sundays, and holidays. As a result, sixty days from December
4, 2018, is Saturday, February 4, 2019. But Rule 26(a)(1)(C)
states that if the last day of the period falls on a
Saturday, Sunday, or legal holiday, as here, the period
continues to run until the next day that is not a Saturday,
Sunday, or legal holiday. As a result, pursuant to Rules 4(a)
and 26(a)(1), Cope has until Monday, February 3, 2019, to
file notice of appeal in this matter.
under the prison mailbox rule, Cope's motion for
extension to file notice of appeal was filed on January 24,
2019, when it was placed in the prison mailbox.
[DE 557 at 2, Pg ID 1007]. As a result, Cope's motion for
an extension of time is timely pursuant to Rule 4(a)(5)(A)(i)