The opinion of the court was delivered by: JOHN E. JONES, District Judge
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Petitioner, Robert Muir Wade ("Petitioner"), a state prisoner
incarcerated at Rockview State Correctional Institution,
Bellefonte, Pennsylvania, initiated this action by filing a
Petition for Writ of Habeas Corpus ("the Petition") pursuant to
28 U.S.C. § 2254 on June 9, 2003. Petitioner, who was sentenced
to a term of incarceration of life for first-degree murder and a
concurrent one to two year sentence for abuse of corpse,
challenged the constitutionality of his conviction.
This case was referred to Magistrate Judge Blewitt for
preliminary review. In August of 2003, Petitioner's counsel of
record, Robert Rosenblum, died and Petitioner now states that he
was unaware of his death at that time. On October 7, 2004, Magistrate Judge Blewitt issued a Report and
Recommendation that the Petition be denied for failure to state a
constitutional claim and failure to properly exhaust one claim in
state court. On October 18, 2004, Jeffery Valender, Esq., an
associate of the late Attorney Rosenblum, filed objections to the
Magistrate Judge's Report Objections. Attorney Valender did not
enter his appearance as counsel of record for Petitioner. On
December 2, 2004, this Court issued an Order denying the Petition
and ordered the Clerk of Court to close the case. Until August of
2005, Petitioner represents that he was unaware of this Court's
Order (doc. 16). Petitioner further indicates that he has been
unsuccessful in his attempts to locate Attorney Valender, and
accordingly that he was unable to file a timely Notice of Appeal
in this matter.
Presently before this court is Petitioner's Motion to Reopen
the Time to File an Appeal (doc. 17) ("the Motion"). For the
following reasons, we will defer a ruling on the Motion and
request that Petitioner supplement the record with certain
information in aid of our determination.
Under Fed.R.A.P. 4(6), a district court may reopen the time to
file an appeal for a period of fourteen (14) days after the date
when its order to reopen is entered, upon the satisfaction of
three conditions: a) the motion to reopen must be filed within 180 days
after the judgment or order is entered, or within 7
days after the moving party receives notice of the
entry, whichever is earlier;
b) the court finds that the moving party was entitled
to notice of the entry of the judgment or order
sought to be appealed but did not receive the notice
from the district court or any party within 21 days
of entry; and
c) the court finds no party would be prejudiced by
reopening the case.
Accepting what Petitioner says as true, through the death of
Petitioner's counsel, Attorney Rosenblum, and the inadvertence of
associate counsel, Attorney Valender, Petitioner was unaware that
his time to appeal this Court's Order (doc. 16) had passed until
August 2005. Petitioner filed the Motion on August 30, 2005, well
in excess of the 180 day period allowed for in Rule 4(6).
Therefore, as Fed.R.A.P. 4(6)(a) indicates, this Court may only
grant the Motion if the Petitioner filed the Motion within seven
(7) days of receiving knowledge of the Order (Rec. Doc. 16).
Petitioner does not state in his moving papers the exact date in
August on which he received notice from his sister, Myrile
Harris, that the Order (doc. 16) had been entered and the case
closed. Before this Court may rule on the Motion, Petitioner must
provide us with a submission that establishes the date upon which he became aware of the entry of the December 2, 2004 Order (doc.
NOW, THEREFORE, IT IS ORDERED THAT:
1. A ruling on the merits of Petitioner's Motion is
2. Within thirty (30) days from the date hereof,
Petitioner will provide the Court with a record
submission establishing the date upon which he was
informed of this ...