334 F. Supp. 3d 578
S.D. Ill.2018Background
- Petitioner Jose Pena is serving life after convictions for conspiracy to commit murder for hire, two counts of murder for hire (18 U.S.C. § 1958), and two § 924(j) counts.
- Pena filed a § 2255 motion challenging counsel effectiveness and sentence in light of Johnson; the district court denied relief on June 27, 2016.
- Pena alleges he did not receive notice of the June 27, 2016 decision until May 2017 via the prison law library and moved under Rule 60(b) in May 2017 to reopen the § 2255 proceeding so he could appeal; the district court purported to extend the appeal deadline to July 17, 2017.
- Pena filed a notice of appeal on July 6, 2017; the Second Circuit held the appeal untimely and ruled the district court lacked jurisdiction to extend the appeal time via Rule 60(b).
- Pena filed the instant Rule 60(b) motion (Nov. 2017) seeking relief to reopen the § 2255 proceeding; the district court denied it as an impermissible attempt to circumvent Appellate Rule 4 time limits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 60(b) can be used to reopen time to appeal after lack of notice | Pena: court should relieve him under Rule 60(b) because he did not receive notice and should be allowed to appeal | Government: Appellate Rule 4(a) governs appeal timing; Rule 60(b) cannot circumvent those jurisdictional limits | Denied — Rule 60(b) cannot be used to restart appellate time limits in lack-of-notice cases; Pena is time-barred |
| Whether Rule 4(a)(5) or 4(a)(6) permit relief given delays | Pena: late filing excusable due to lack of mailed notice | Government: motions were untimely under Rule 4(a)(5) and (6) and statutory windows expired | Held: Pena’s motions fell outside the windows of Rules 4(a)(5) and 4(a)(6) so relief is unavailable |
| Whether Washington v. Ryan supports Rule 60(b) relief here | Pena: relies on Washington to justify Rule 60(b) relief | Government: Washington was an exceptional, non-lack-of-notice case and does not control | Court: Washington is distinguishable and does not allow Rule 60(b) in lack-of-notice cases |
| Whether Rule 77(d) lack of notice affects appeal timing | Pena: lacked notice under Rule 77(d) so court should equitably relieve | Government: Rule 77(d) does not alter appellate timing except as provided by Appellate Rule 4(a)(6) | Held: Rule 77(d) does not authorize Rule 60(b) relief; Appellate Rule 4 provides exclusive remedy |
Key Cases Cited
- Bowles v. Russell, 551 U.S. 205 (timely filing of notice of appeal is jurisdictional)
- U.S. ex rel. McAllan v. City of New York, 248 F.3d 48 (2d Cir. 2001) (district court cannot re-create jurisdiction for a time-barred appeal)
- Stevens v. Miller, 676 F.3d 62 (2d Cir. 2012) (Rule 60(b) cannot substitute for an untimely appeal)
- Montco, Inc. v. Barr (In re Emergency Beacon Corp.), 666 F.2d 754 (2d Cir. 1981) (standard of review for Rule 60(b) relief)
- Washington v. Ryan, 833 F.3d 1087 (9th Cir. 2016) (exceptional, non-lack-of-notice Rule 60(b) relief; distinguishable)
- In re Stein, 197 F.3d 421 (9th Cir. 1999) (after Rule 4(a)(6) amendment, Rule 60(b) no longer fills lack-of-notice gaps)