Shamir Josia Suber v. Secretary, Florida Department of Corrections, et al

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10762
Non-Argument Calendar
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D.C. Docket No. 6:08-cv-02005-GKS-KRS
SHAMIR JOSIA SUBER,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 6, 2013)
Before BARKETT, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:
Shamir Josia Suber, a Florida prisoner, appeals through counsel the district
court’s order denying his pro se motion under Federal Rule of Civil Procedure
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60(b), which sought relief from the court’s order denying his motion under Federal
Rule of Appellate Procedure 4(a)(6) to reopen the time period to file a notice of
appeal.
In December 2008, Suber filed a pro se petition for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254. The district court denied Suber’s petition and
dismissed the case with prejudice in a judgment filed on April 21, 2010. On
December 15, 2010, Suber sent a pro se letter of inquiry to the district court’s clerk
of court requesting information regarding his petition, including whether the court
had ruled on the petition. Upon learning that his petition had been denied, Suber
moved pro se to reopen the time to file an appeal, pursuant to Rule 4(a)(6),
alleging that he never received a copy of the court’s order originally denying his
habeas corpus petition. The district court denied the Rule 4(a)(6) motion to re-
open the time to file an appeal. Suber then filed the Rule 60(b) motion for relief
from this denial which is the subject matter of this appeal. We generally review a
district court’s denial of a Rule 60(b) motion for an abuse of discretion. Jackson v.
Crosby, 437 F.3d 1290, 1295 (11th Cir. 2006).
We find no reversible error because his motion under Rule 4(a)(6) to reopen
the time period to file a notice of appeal was correctly denied as more than 180
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days had elapsed since the judgment was entered.1 Therefore, we find no abuse of
discretion in the denial of his Rule 60(b) motion.
AFFIRMED.
1 A district court is not authorized to reopen the time to file a notice of appeal based on
lack of notice when more than 180 days have passed since the entry of the judgment or order,
and we have held that “[t]o permit extensions of the time to appeal beyond the 180-day limit . . .
would effectively thwart the purpose of [Rule 4(a)(6)].” Vencor Hosp., Inc. v. Standard Life &
Accident Ins. Co., 279 F.3d 1306, 1310-11 (11th Cir. 2002). We have concluded that Rule
4(a)(6) “provides the exclusive method for extending a party’s time to appeal for failure to
receive actual notice that a judgment or order has been entered [, and that] Rule 60(b) cannot be
used to circumvent the 180-day limitation set forth in Rule 4(a)(6).” Id. at 1311.
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