ROBERT HARDEN v. BRIAN GAGE ROBERT HOUSTON (2021)

MEMORANDUM AND ORDER

This matter is before me on Petitioner Robert Harden's (“Petitioner” or “Harden”) Application for a Certificate of Appealability. (Filing 52.) Harden seeks a certificate in order to appeal from the court's April 30, 2021 Memorandum and Order (filing 49) denying Harden's Motion to Alter and Amend Judgment (filing 46), which the court construed as a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b).

A certificate of appealability is required to appeal from “the final order in a habeas corpus proceeding” brought pursuant to 28 U.S.C. § 2254. 28 U.S.C. § 2253(c)(1); see also 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b)(1). The Eighth Circuit has concluded that a certificate of appealability is required to appeal from the denial of a Rule 60(b) motion in a habeas corpus proceeding. See United States v. Lambros, 404 F.3d 1034, 1036–37 (8th Cir. 2005) (requiring certificate of appealability for appeal from denial of Rule 60(b) relief in § 2255 context); see also Brian R. Means, Federal Habeas Manual § 12:73 (including Eighth Circuit among courts that require certificate of appealability to appeal from denial of Rule 60(b) motion). The standards for certificates (1) where the district court reaches the merits or (2) where the district court rules on procedural grounds are set forth in Slack v. McDaniel, 529 U.S. 473, 484–85 (2000).

In this case, Harden has failed to make a substantial showing of the denial of a constitutional right. The court is not persuaded that the claims raised in Harden's Rule 60(b) motion are debatable among reasonable jurists, that a court could resolve the claims differently, or that the claims deserve further proceedings. Accordingly, the court will not issue a certificate of appealability in this case.

Harden is free to seek a certificate of appealability from the Eighth Circuit Court of Appeals in conjunction with an appeal of the denial of his Rule 60(b) motion. Fed. R. App. P. 22(b)(1) (“If the district judge has denied the certificate [of appealability], the applicant may request a circuit judge to issue it.”). However, the Federal Rules of Appellate Procedure require that a petitioner appealing the denial of habeas corpus relief file both a notice of appeal and a request for a certificate of appealability. Fed. R. App. P. 3(a)(1), 22(b). See United States v. Grant, No. 8:04CR267, 2007 WL 2156347, at *1 (D. Neb. July 25, 2007). Here, Harden has only filed a request for a certificate of appealability.

Liberally construed, Harden's Application for Certificate of Appealability could be considered a notice of appeal from the court's April 30, 2021 Memorandum and Order if it had been timely filed. See Turner v. Armontrout, 922 F.2d 492 (8th Cir. 1991) (construing pro se petitioner's application for certificate of appealability filed within 30 days of judgment dismissing habeas petition as a notice of appeal where application satisfied requirements of Fed. R. App. P. 3(c)). However, Harden's application was untimely.

Federal Rule of Appellate Procedure 4(a)(1)(A) sets forth that a notice of appeal in a civil case must be filed within 30 days of the entry of judgment. This requirement is both “mandatory and jurisdictional.” Burgs v. Johnson Cnty., Iowa, 79 F.3d 701, 702 (8th Cir. 1996). Moreover, an untimely notice of appeal cannot serve as a motion for extension of time to file an appeal. Id. A district court may extend the time to file a notice of appeal if a party moves for an extension of time and shows excusable neglect or good cause, provided that the party moves for the extension of time within 30 days of the expiration of the 30-day period set out in Rule 4(a)(1)(A). Fed. R. App. P. 4(a)(5)(A). In addition, if a party files one of the post-judgment motions listed in Rule (a)(4)(A), the time to file the appeal runs from the entry of the order disposing of the motion. Fed. R. App. P. 4(a)(4)(A).

Here, Harden filed his Application for a Certificate of Appealability on June 14, 2021, which is thirteen days after the 30-day appeal period expired on June 1, 2021.¹ See Fed. R. App. P. 4(a)(1)(A). Even if the court were to construe Harden's application as a notice of appeal, the notice would be untimely, and it cannot serve as a motion to extend the time in which Harden has to appeal. Harden may seek an extension of time to file a notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(5)(A).

IT IS THEREFORE ORDERED that: Petitioner's Application for a Certificate of Appealability (filing 52) is denied.

Dated this 17th day of June, 2021.

FOOTNOTES

1.   Harden's motion for copies (filing 50) filed on May 17, 2021, did not extend the time in which to appeal. See Fed. R. App. P. 4(a)(4).

Richard G. Kopf Senior United States District Judge