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United States v. Cope

United States District Court, E.D. Kentucky, Northern Division, Covington

January 29, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRY WAYNE COPE, Defendant.

          MEMORANDUM OPINION AND ORDER

          Joseph M. Hood Senior U.S. District Judge.

         Defendant 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.

         I. Procedural History

         On 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].

         Now, on 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 untimely. [Id.].

         Undeterred, on October 30, 2018, [1] 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].

         Now, 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. [DE 557].

         II. Analysis

         Rule 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. 1989).

         A. Timeliness of Motion for Extension of Time

         First, 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.”

         As a 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].

         Under 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.

         Ultimately, under the prison mailbox rule, Cope's motion for extension to file notice of appeal was filed on January 24, 2019, [2]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) ...


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