The opinion of the court was delivered by: Judge Vanaskie
On December 11, 2007, the United States Court of Appeals for the Third Circuit remanded this case to reconsider the availability of Federal Rule of Appellate Procedure 4(a)(6) to Defendant Khasan Dancy's attempt to appeal a previous order entered by this Court. (See Order of Court of Appeals, Dec. 11, 2007 ("Remand Order"), Dkt. Entry 71.)*fn1 Mr. Dancy appealed this Court's February 1, 2007, Order ("February 1 Order") denying his motion to reconsider this Court's January 3, 2007, Order ("January 3 Order"), which in turn denied Mr. Dancy's motion to extend the time within which to appeal the August 28, 2006, Order ("August 28 Order") denying his motion for relief under 28 U.S.C. § 2255. The parties were directed to brief the issue posed by the Remand Order, but only the Government complied. Mr. Dancy notified the Court on February 22, 2008, that he no longer desired to pursue this matter, and that he would file nothing regarding Fed. R. App. P. 4(a)(6). (Dkt. Entry 78, at 1-2.) Although this issue appears to be moot, in the absence of contrary instructions from the Third Circuit, the Court is obliged to respond to the Remand Order and will do so based solely on the Government's submission. For the reasons that follow, the Court finds that Rule 4(a)(6) is unavailable to Mr. Dancy's attempted appeal.
On November 25, 2003, a grand jury returned an eleven-count indictment against Mr. Dancy, charging him with firearms and drug-related offenses. (Dkt. Entry 1.) Mr. Dancy pled guilty to conspiracy to make false statements to firearms dealers and conspiracy to distribute and possess with intent to distribute cocaine base (crack), in violation of 18 U.S.C. § 371 and 21 U.S.C. § 846, respectively. The guilty plea was entered pursuant to a written plea agreement, which, among other things, included a waiver by Mr. Dancy of his right to challenge his conviction or sentence on direct review or in a collateral proceeding. On October 27, 2004, this Court sentenced Mr. Dancy to 108 months imprisonment.
Notwithstanding the express waiver of his right to collaterally challenge his conviction and sentence, on January 11, 2006, Mr. Dancy filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Dkt. Entry 47.) He subsequently filed an amended motion on June 19, 2006. (Dkt. Entry 53.) On August 28, 2006, this Court entered an order enforcing the waiver and dismissing Mr. Dancy's motion. (Dkt. Entry 54.) The Court also granted Mr. Dancy a certificate of appealability, however, because the "Third Circuit ha[d] yet to rule definitively on the validity of a waiver to the right to file a collateral challenge to a conviction under 28 U.S.C. § 2255." (Id. at 10.)
Pursuant to Federal Rule of Appellate Procedure 4(a)(1)(B), Mr. Dancy had sixty days from the entry of the August 28 Order to file a notice of appeal. No notice of appeal was filed. Instead, on December 26, 2006, Mr. Dancy filed a motion for extension of time to file an appeal, explaining:
The defendant moves this court to reopen the time to appeal the court's order based upon extraordinary circumstances, being that the defendant is currently housed in USP Big Sandy -- which has experienced a series of lockdowns due to various prison disturbances -- which has prevented defendant from timely pursuing his claims, where the defendant has not had access to the prison law library due to the law library being closed after an inmate was stabbed to death there. ( (Dkt. Entry 56 at 1.) Mr. Dancy's motion, however, was barren of any suggestion that he failed to receive notice of the August 28 Order, the absence of which this Court observed in a footnote to the January 3 Order:
In his motion, Mr. Dancy seeks an order reopening the time to file an appeal. Such relief is unavailable where, as here, the moving party fails to allege that he did not receive notice of the entry of the judgment or order sought to be appealed. See Fed. R. App. P. 4(a)(6). As such, the Court has construed Mr. Dancy's motion as a motion for extension of time to file an appeal. (January 3 Order 1 n.1.)
The Court denied this motion in the January 3 Order. Under Rule 4(a)(5)(A), the Court could "extend the time to file a notice of appeal only if 'a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires.'" (Id. at 2 (quoting Fed. R. App. P. 4(a)(5)(A)(i)).) Because Mr. Dancy's motion was filed well after the thirty-day period, the Court lacked jurisdiction to grant relief and, therefore, denied his motion. (Id. at 2-3 (citing IUE AFLCIO Pension Fund v. Barker & Williamson, Inc., 788 F.2d 118, 122 n.1 (3d Cir. 1986)).)
Mr. Dancy filed a motion for reconsideration of the January 3 Order, which was docketed in this Court on January 25, 2007. (Dkt. Entry 60.) The envelope containing the motion was postmarked January 22, 2007 -- less than twenty-one days after the January 3 Order was entered. (See id. at 4.) Mr. Dancy reiterated in this motion that the prison lockdowns impaired his ability to file a timely notice of appeal. (Id. ¶ 3.) Once again, he did not contend that he never received notice of the August 28 Order. On February 1, 2007, the Court denied this motion, concluding Mr. Dancy failed to establish any grounds to warrant reconsidering the January 3 Order. (See February 1 Order 3-4.)
On July 6, 2007, the Clerk of Court for the Third Circuit received a letter from Mr. Dancy, dated July 2, 2007. (See Letter from Court of Appeals to Mary D'Andrea ("Court of Appeals Letter"), July 20, 2007, Dkt. Entry 67-2; Letter from Mr. Dancy to Court of Appeals, July 2, 2007 ("Dancy Letter"), Dkt. Entry 67.) Attached to the letter was the first page of the February 1 Order and, as such, the clerk construed the letter as a notice of appeal of the February 1 Order. (Court of Appeals Letter.)*fn2 Additionally, the letter reasserted Mr. Dancy's inability to file a timely notice of appeal of the August 28 Order due to a prison lockdown: "The [District Court] has denied my [2255 motion] but granted me a [COA.] I had 60 days to respond and due to 2 murders I missed the deadline . . . ." (Dancy Letter (emphasis added).)
Because Mr. Dancy's letter was received approximately five months after the February 1 Order was entered, his appeal was clearly untimely. The Court of Appeals advised Mr. Dancy in a letter dated August 22, 2007, that his appeal "will be submitted to a panel of this Court for possible dismissal due to a jurisdictional defect [i.e., its untimeliness]." (Letter from Court of Appeals to Khasan Dancy, Aug. 22, 2007, Ex. A to Gov't's Br. Regarding Applicability of Fed. R. App. P. 4(a)(6), Dkt. Entry 74-2, at 1.) Rather than dismissing Mr. Dancy's appeal, the panel issued the Remand Order, which provided:
Because of the uncertainties referred in the record, and the issue of whether Dancy waived his right to appeal a § 2255 Motion in addition to the "lock down" and the question of whether he could have filed a timely motion invoking F.R.A.P. (4)(a)(6), this case is remanded to the District Court to reconsider the availability of F.R.A.P. (4)(a)(6). (Remand Order.)
On December 27, 2007, this Court entered an Order directing the Government and Mr. Dancy to file briefs addressing the question presented by the Remand Order. (Dkt. Entry 73.) The Government filed its brief January 11, 2008. (Dkt. Entry 74.) Mr. Dancy filed nothing in response to that order, prompting this Court to enter a second order affording Mr. Dancy ten additional days to file a brief. (Dkt. Entry 77.) On February 22, 2008, the Court received notice from Mr. Dancy that he intended to discontinue his appeal, and that he would not be filing a brief with respect ...