Jerome Ferrier v. Florida Department of Corrections, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13729
Non-Argument Calendar
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JEROME FERRIER,
Petitioner-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
STATE OF FLORIDA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:17-cv-00178-RH-EMT
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2 Opinion of the Court 21-13729
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Before WILSON, L UCK , AND TJOFLAT, Circuit Judges
PER C URIAM :
Jerome Ferrier, a Florida state prisoner proceeding
pro se,
appeals the District Court’s order denying his Fed. R. App. P.
4(a)(6) motion to reopen the time to appeal the order denying his
pro se 28 U.S.C. § 2254 petition. He argues that the District Court
abused its discretion by not reopening the time to address the de-
nial of his petition. He contends that he could not have timely ap-
pealed because he did not receive notice of the order within the
180-day deadline in Rule 4(a)(6) due to delays from COVID-19 and
failures by the officials responsible for processing and mailing the
order, and thus the time limit to appeal should have been equitably
tolled for these extraordinary circumstances.
We review a district court’s denial of a motion to reopen the
time to file a notice of appeal under Rule 4(a)(6) for an abuse of
discretion.
McDaniel v. Moore, 292 F.3d 1304, 1305 (11th Cir.
2002). But we review
de novo a district court’s interpretation of
federal procedural rules.
Vencor Hosps., Inc. v. Standard Life &
Accident Ins. Co., 279 F.3d 1306, 1308 (11th Cir. 2002). A petitioner
may proceed before us despite the lack of a certificate of appeala-
bility (“COA”) to the extent he is not appealing a final order on the
merits of his § 2254 petition.
Harbison v. Bell, 556 U.S. 180, 183,
129 S. Ct. 1481, 1485 (2009).
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21-13729 Opinion of the Court 3
A notice of appeal in a 28 U.S.C. § 2254 case is timely if it is
filed within 30 days after entry of the judgment or order appealed
from. Fed. R. App. P. 4(a)(1)(A). However, a district court may
reopen the time to appeal for a period of 14 days after the date its
order to reopen is entered if: (A) the court finds that the moving
party did not receive notice of entry of the judgment or order
within 21 days of entry; (B) a motion is filed within 180 days after
the judgment or order is entered, or within 14 days after the mov-
ing party receives notice of the entry, whichever is earlier; and (C)
the court finds that no party would be prejudiced. Fed. R. App. P.
4(a)(6).
In
Bowles v. Russell, the Supreme Court clarified that the
timely filing of a notice of appeal in a civil case is a jurisdictional
requirement and rejected the petitioner’s argument that the Court
should excuse his untimely filing because he satisfied the “unique
circumstances” doctrine. 551 U.S. 205, 213–14, 127 S. Ct. 2360,
2366 (2007). The Supreme Court explained that because it “has no
authority to create equitable exceptions to jurisdictional require-
ments, use of the ‘unique circumstances’ doctrine is illegitimate.”
Id. at 214, 127 S. Ct. at 2366. In
Vencor Hosps., Inc., we made clear
that extensions under Rule 4(a)(6) are limited and that “[u]nder the
plain meaning of Rule 4(a)(6), district courts are authorized to reo-
pen the time for filing an appeal based on lack of notice solely
within 180 days of the judgment or order.” 279 F.3d at 1310.
Here, the District Court did not abuse its discretion. The
District Court entered a final judgment denying Ferrier’s § 2254
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4 Opinion of the Court 21-13729
petition on November 23, 2020. On July 20, 2021, Ferrier filed a
pro se Rule 4(a)(6) motion to reopen the time to appeal the denial
of his § 2254 petition. Ferrier thus filed his motion to reopen more
than 180 days after the District Court entered the final judgment
denying his § 2254 petition, and the 180-day limit to reopen the
time to appeal is mandatory and not subject to equitable tolling for
extraordinary or unique circumstances. Accordingly, we affirm.
AFFIRMED.
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