Thomas v. United States
- Katherine Failla
- 1:17-cv-00781
- U.S. District Court · Southern District of New York
- 6
In Thomas v. United States, Judge Failla granted Thomas’s motion to reopen his appeal deadline because he did not receive timely notice of the order.
Dwayne Thomas may pursue an appeal from the order denying his 28 U.S.C. § 2255 motion, subject to filing a notice of appeal by April 13, 2022. The United States must notify the Second Circuit of the reopening decision within 30 days.
What happened
In Thomas v. United States, Dwayne Thomas asked to reopen the time to appeal an order denying his motion to challenge his sentence. The Second Circuit directed the district court to treat his late notice of appeal as that request because Thomas said he did not receive the relevant orders on time.
The court found that Thomas did not receive notice of the order within 21 days, filed within the required time after receiving actual notice, and would not prejudice the United States by being allowed to appeal.
Judge Katherine Polk Failla granted Thomas’s motion to reopen the time to appeal and ordered him to file a notice of appeal, if any, by April 13, 2022. The United States also had to notify the Second Circuit of the decision within 30 days.
The detailed version
- Thomas v. United States · No. 1:17-cv-00781
- Katherine Failla
- Mar. 30, 2022
Background
Dwayne Thomas filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Judge Pauley denied that motion on January 19, 2021. Thomas later told the court that he did not learn of the decision until March 24, 2021, and that he apparently did not receive a physical copy until April 22, 2021. The opinion states that Judge Pauley attributed the lack of notice to Thomas’s counsel’s retirement from practicing law.
Thomas filed a notice of appeal on April 27, 2021. The Second Circuit determined that the notice was untimely, but directed the district court to treat it as a motion to reopen the appeal period under Federal Rule of Appellate Procedure 4(a)(6).
Rule 4(a)(6)
Rule 4(a)(6) allows a district court to reopen the time to appeal for 14 days if three conditions are met: the person did not receive notice of the judgment or order within 21 days after it was entered; the request was filed within the rule’s time limits; and reopening the appeal period would not prejudice another party.
Court’s Analysis
The court found all three conditions satisfied. First, Thomas did not receive notice of Judge Pauley’s order within 21 days of its entry. The court found no indication that Thomas caused or contributed to the delay.
Second, the court found that Thomas filed his notice of appeal within 180 days of the order and within 14 days of receiving actual notice. The court relied on the Second Circuit’s explanation that the rule’s notice requirement concerns actual receipt, not merely service that is legally presumed effective.
Third, the court found that reopening the appeal period would not prejudice the United States. The court noted that Thomas had consistently tried to appeal and had repeatedly received important documents late.
Disposition
The court GRANTS Plaintiff’s motion to reopen the time to appeal under Federal Rule of Appellate Procedure 4(a)(6). It ordered Thomas to file a notice of appeal, if any, by April 13, 2022. The United States was ordered to notify the Second Circuit of the decision within 30 days. This order addressed the deadline for appealing the denial of Thomas’s § 2255 motion; it did not decide the merits of that underlying motion.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.