Griffin v. LaManna

24-3009-pr
Griffin v. LaManna
United States Court of Appeals
For the Second Circuit
August Term 2025
Argued: November 18, 2025
Decided: April 29, 2026
No. 24-3009-pr
GARY GRIFFIN AKA G-MONEY ,
Petitioner-Appellant,
v.
JAMIE L AMANNA,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of New York
No. 19-cv-155
Brenda K. Sannes, Chief Judge.
Before: L IVINGSTON, Chief Judge, and RAGGI and PARK, Circuit
Judges.
Gary Griffin, a New York state prisoner, filed an unsuccessful
federal habeas corpus petition under 28 U.S.C. § 2254. After the
district court (Sannes, C.J.) denied his petition, Griffin failed to meet
the deadline to file an appeal under Federal Rule of Appellate

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Procedure 4(a). He moved for an extension of time under Rule 4(a)(5),
which the district court also denied. Griffin now seeks to appeal the
denial of his Rule 4(a)(5) motion, but he may not do so without first
obtaining a certificate of appealability. This is because the district
court’s decision concluded the habeas proceeding, making it a “final
order” under 28 U.S.C. § 2253(c)(1)(a). And we decline to issue a
certificate of appealability here because reasonable jurists would not
find it debatable whether the district court abused its discretion in
denying Griffin’s Rule 4(a)(5) motion. We thus lack jurisdiction and
DISMISS Griffin’s appeal.
J ASPER L. MILLS, E SQ., Schenectady, NY, for Petitioner-Appellant.
PAUL B. L YONS, Assistant Attorney General, for Letitia James,
Attorney General of New York, New York, NY, for Respondent-
Appellee.
PARK, Circuit Judge:
Gary Griffin, a New York state prisoner, filed an unsuccessful
federal habeas corpus petition in the United States District Court for
the Northern District of New York under 28 U.S.C. § 2254. After the
district court denied his petition, Griffin failed to meet the deadline to
file an appeal under Federal Rule of Appellate Procedure 4(a). He
moved for an extension of time under Rule 4(a)(5), which the district
court also denied. Griffin now seeks to appeal the denial of his Rule
4(a)(5) motion, but he may not do so without first obtaining a
certificate of appealability. This is because the district court’s decision
concluded the habeas proceeding, making it a “final order” under 28
U.S.C. § 2253(c)(1)(a). And we decline to issue a certificate of
appealability here because reasonable jurists would not find it

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debatable whether the district court abused its discretion in denying
Griffin’s Rule 4(a)(5) motion. We thus lack jurisdiction and dismiss
Griffin’s appeal.
I. BACKGROUND
Gary Griffin is a New York state prisoner convicted of first-
degree murder, conspiracy, intimidation of a victim or witness,
tampering with a witness, criminal possession of a weapon, and
criminal facilitation. He is serving a life sentence without the
possibility of parole.
Griffin filed a federal habeas corpus petition under 28 U.S.C.
§ 2254 challenging his convictions. On April 30, 2024, the district
court denied Griffin’s petition on the merits and declined to issue a
certificate of appealability (“COA”). Under Federal Rule of Appellate
Procedure 4(a)(1)(A), his deadline to appeal from the denial of the
petition was May 30, 2024.
Griffin missed that deadline and instead filed a notice of appeal
on June 21, 2024,1 along with a motion for an extension of time to
appeal under Rule 4(a)(5). That motion asserted that (1) Griffin’s
counsel did not learn of the district court’s judgment for several
weeks because the law firm staff responsible for receiving court
documents were out of the office; (2) when counsel learned of the
district court’s decision, he was incorrectly informed that Griffin had
already received the decision; and (3) counsel was unable to contact
Griffin until June 21, 2024. Griffin argued that these circumstances
amounted to “excusable neglect” under Rule 4(a)(5)(A)(ii).
The district court denied the motion and declined to issue a
COA, concluding that Griffin failed to demonstrate excusable neglect
1 Griffin’s appeal from the district court’s denial of his habeas
petition is stayed pending resolution of this appeal.

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because his counsel’s actions were, at best, run-of-the-mill attorney
errors. Griffin timely appealed from the denial of the Rule 4(a)(5)
motion.2
II. DISCUSSION
The government argues that a COA must issue before this
Court may review Griffin’s appeal from the denial of his Rule 4(a)(5)
motion. We agree and decline to issue one because reasonable jurists
would not find it debatable whether the district court abused its
discretion in denying Griffin’s Rule 4(a)(5) motion.3
A. The COA Requirement
“Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from
. . . the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court.”
28 U.S.C. § 2253(c)(1)(A).4 In Eltayib v. United States, 294 F.3d 397 (2d
Cir. 2002), we applied this requirement to dismiss an appeal from the
denial of a Rule 4(a)(6) motion to reopen the time to appeal. See id. at
399. The first issue before us is whether Eltayib was abrogated by the
Supreme Court’s subsequent decision in Harbison v. Bell, 556 U.S. 180
(2009). It was not.
2 Griffin appeared to request a COA in his opening brief, but then
argued in his reply brief that there is no “requirement for a COA in this
context.” Reply Br. at 22.
3 We consider only the arguments and facts Griffin presented to the
district court. “It is a well-established general rule that an appellate court
will not consider an issue raised for the first time on appeal.” Allianz Ins.
Co. v. Lerner, 416 F.3d 109, 114 (2d Cir. 2005) (cleaned up).
4 A habeas petitioner’s failure to obtain a COA is a jurisdictional bar
to appellate review. See Gonzalez v. Thaler, 565 U.S. 134, 142 (2012).

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To begin, we held in Eltayib that a COA is required before a
habeas petitioner may appeal from the denial of a Rule 4(a)(6) motion.
See 294 F.3d at 399. Looking to the plain text of § 2253(c)(1)(A), we
read the phrase “final order” to include any “‘final decision’
appealable pursuant to 28 U.S.C. § 1291.” Id.; see also Kellogg v. Strack,
269 F.3d 100, 103 (2d Cir. 2001) (holding that the denial of a motion
under Federal Rule of Civil Procedure 60(b) is a “final order” under
28 U.S.C. § 2253). We concluded that the denial of a Rule 4(a)(6)
motion was a “final decision” under 28 U.S.C. § 1291, so “a [COA] is
required to challenge such an order.” Eltayib, 294 F.3d at 399.
Subsequently, in Harbison, the Supreme Court considered an
appeal from an order denying a habeas petitioner’s motion to permit
counsel to represent him in state clemency proceedings after the
district court had denied his habeas petition. See 556 U.S. at 182-83.
Although the “denial of Harbison’s motion . . . was clearly an
appealable order under 28 U.S.C. § 1291,” the Court held that it was
not subject to the COA requirement because § 2253 “governs final
orders that dispose of the merits of a habeas corpus proceeding—a
proceeding challenging the lawfulness of the petitioner’s detention.”
Id. at 183 (emphasis added). And “[a]n order that merely denies a
motion to enlarge the authority of appointed counsel . . . is not such
an order.” Id.
Griffin argues that Harbison abrogated Eltayib, so he does not
need a COA to proceed in this appeal. He contends that the denial of
a Rule 4(a) motion is not a “final order[] that dispose[s] of the merits
of a habeas corpus proceeding,” Harbison, 556 U.S. at 183, because
such a denial concerns a procedural matter “separate and distinct
from [the] underlying” habeas petition, Reply Br. at 21. The
government contends that the question is not “whether the relevant
order addresses the substance of petitioner’s underlying claims, but

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. . . whether, as here, the order had the effect of finally concluding the
habeas proceeding.” Gov’t Br. at 16. We agree with the government.
First, we read Harbison in light of the COA requirement’s
gatekeeping function. Cf. Banister v. Davis, 590 U.S. 504, 512 (2020)
(interpreting AEDPA’s bar on second-or-successive petitions in light
of “AEDPA’s own purposes”). The COA requirement screens out
unmeritorious habeas appeals by conditioning appellate review on a
threshold showing that a claim “deserve[s] encouragement to
proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2009) (cleaned
up); see also Thaler, 565 U.S. at 145. Notably, a petitioner must obtain
a COA regardless of whether the district court denied his habeas
petition on substantive or procedural grounds. See Slack, 529 U.S. at
484. “When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional
claim,” a petitioner must demonstrate that both the claim of
procedural error and the underlying constitutional claim have
arguable merit before an appeal may be taken. Id. at 484-85. So even
if a district court erroneously denies a petition on purely procedural
grounds, an appellate court may nonetheless decline to entertain an
appeal if the petitioner failed to “state[] a valid claim of the denial of
a constitutional right.” Id. at 484.
In light of the gatekeeping purpose of the COA requirement,
the better reading of Harbison is that it distinguished “final orders that
conclude the habeas proceeding itself from those orders that merely
resolve a collateral issue.” Bracey v. Superintendent Rockview SCI, 986
F.3d 274, 282 (3d Cir. 2021) (cleaned up). That is because an appeal
from an order that concludes the proceeding will determine whether
a habeas case “proceed[s] further.” Slack, 529 U.S. at 484. Here, for
instance, the district court’s denial of Griffin’s Rule 4(a)(5) motion
barred him from pursuing his habeas case on appeal. A successful
appeal from that denial would restore the possibility of pursuing his

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habeas petition, so it makes sense to consider at the outset whether
his petition has arguable merit rather than to engage in piecemeal
appellate review. See Eltayib, 294 F.3d at 399-400; cf. Banister, 590 U.S.
at 516-17; Gonzalez v. Crosby, 545 U.S. 524, 535 n.7 (2005) (noting that
requiring a COA to appeal from the denial of a Rule 60(b) motion for
relief from judgment is a “plausible and effective screening
requirement”). In Harbison, by contrast, a favorable decision on the
petitioner’s request for representation in state clemency proceedings
could not have affected the disposition of his habeas petition or
otherwise brought him closer to obtaining relief. See United States v.
Winkles, 795 F.3d 1134, 1142 (9th Cir. 2015). Under those
circumstances—where an appeal is taken from an order entirely
collateral to the underlying habeas proceeding—conditioning review
on a merits showing would not serve the COA requirement’s
gatekeeping function.
Second, our post-Harbison decisions likewise have applied
Harbison’s exception only to collateral orders. For instance, in
Illaramendi v. United States, 906 F.3d 268 (2d Cir. 2018), we held that a
COA is not required to appeal from the denial of bail because it is not
“a final disposition of the habeas proceeding.” Id. at 270. And in
Lasher v. United States, 970 F.3d 129 (2d Cir. 2020), we held that a COA
is not required to appeal from a district court’s denial of a COA
“[b]ecause the decision to deny a [COA] does not end litigation on the
merits.” Id. at 132 (noting that an “applicant [may] seek a [COA] from
a circuit judge in the event of a denial by the district court”). Like the
order denying expanded representation in Harbison, an order denying
bail and an order denying a COA do not “dispose of the merits” of
the underlying habeas petition because they do not implicate a
petitioner’s ability to obtain habeas relief—not because they deal with
a procedural matter. By contrast, as noted above, an order denying a
motion under Rules 4(a)(5)-(6) is dispositive of the merits of a habeas

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proceeding because it precludes further litigation before an appellate
court.
Third, the Supreme Court’s decision in Slack gives us further
reason to doubt that Harbison distinguishes between “orders that do
conclude proceedings based on whether the disposition was
substantive or procedural in nature.” Bracey, 986 F.3d at 282. District
courts routinely deny habeas petitions on procedural grounds. Even
though such orders say nothing about a petition’s merits, Slack held
that a COA is nonetheless required before an appeal of such an order
may be taken. 529 U.S. at 484. It is doubtful that “in Harbison the
Supreme Court sub silentio overruled its holding in Slack,” so we find
Griffin’s characterization implausible.5 Hamilton v. Sec’y, Fla. Dep’t of
Corrs., 793 F.3d 1261, 1265 (11th Cir. 2015). It is more likely that
Harbison excepted orders that “merely resolve a collateral issue” from
5 The Fourth and Sixth Circuits have concluded that a COA is
required only when an appeal is taken from an order substantively
resolving a habeas claim. See Mizori v. United States, 23 F.4th 702, 705 (6th
Cir. 2022) (holding that a COA is not required to appeal from the denial of
a Rule 4(a)(5) motion because it “sa[ys] nothing about the merits of [the]
underlying [habeas petition]”); United States v. McRae, 793 F.3d 392, 399-400
(4th Cir. 2015). In our view, those courts overread Harbison. As the
Supreme Court has emphasized, “[t]he term ‘on the merits’ has multiple
usages.” Gonzalez, 545 U.S. at 532 n.4; see also Semtek Int’l Inc. v. Lockheed
Martin Corp., 531 U.S. 497, 503 (2001) (noting the term’s “possibly
misleading connotations” (cleaned up)). Depending on the context,
decisions “on the merits” may well refer to judgments “that do not pass
upon the substantive merits of a claim.” Semtek, 531 U.S. at 502-03
(concluding that “adjudication upon the merits” in Federal Rule of Civil
Procedure 41(b) refers merely to a dismissal that bars a litigant from refiling
a claim in the same court). Relying solely on what Harbison “plainly say[s],”
Mizori, 23 F.4th at 705, is thus an inadequate interpretive approach. The
context indicates that Harbison did not use the term “on the merits” to refer
to a substantive resolution of a habeas claim.

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the COA requirement, not those that “conclude the habeas
proceeding.” Bracey, 986 F.3d at 282.
We thus conclude that Eltayib remains good law and that
Harbison’s exception to the COA requirement does not apply to orders
that conclude a habeas proceeding like the denial of a Rule 4(a)(5)
motion. Consequently, Griffin must demonstrate his entitlement to a
COA before we may consider his appeal.
B. Griffin Is Not Entitled to a COA
“We review a district court’s refusal to grant an extension of
time to file a notice of appeal under Federal Rule of Appellate
Procedure 4(a)(5) for abuse of discretion.” Alexander v. Saul, 5 F.4th
139, 146 (2d Cir. 2021). To obtain a COA in an appeal from the denial
of a Rule 4(a)(5) motion, a petitioner must show, at minimum, that
“jurists of reason would find it debatable whether the district court
abused its discretion in denying” the Rule 4(a)(5) motion. Eltayib, 294
F.3d at 399. “A district court has abused its discretion if it has
(1) based its ruling on an erroneous view of the law, (2) made a clearly
erroneous assessment of the evidence, or (3) rendered a decision that
cannot be located within the range of permissible decisions.” Lynch
v. City of New York, 589 F.3d 94, 99 (2d Cir. 2009) (cleaned up).
Rule 4(a)(5) permits a district court to “extend the time to file a
notice of appeal” if the party seeking an extension “shows excusable
neglect or good cause.” “The burden of proving excusable neglect lies
with the late-claimant.” Saul, 5 F.4th at 148 (cleaned up). “In deciding
whether a movant has carried this burden, courts consider the four
factors set forth by the Supreme Court in Pioneer [Inv. Servs. Co. v.
Brunswick Assocs. Ltd., 507 U.S. 380 (1993)]: ‘[1] the danger of prejudice
to the non-movant, [2] the length of the delay and its potential impact
on judicial proceedings, [3] the reason for the delay, including
whether it was within the reasonable control of the movant, and [4]

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whether the movant acted in good faith.’” Saul, 5 F.4th at 148 (cleaned
up). This Court applies “dispositive weight” to the third factor. Id. at
149.
We conclude that Griffin is not entitled to a COA because no
reasonable jurist would find it debatable whether the district court
abused its discretion in denying Griffin’s Rule 4(a)(5) motion.
First, the district court correctly concluded that Griffin did not
meet the third Pioneer factor. Before the district court, Griffin’s
counsel attributed the delay to “a misunderstanding of this writer
based upon misrepresentations made, the overlapping absences of
support staff as well as the inability to contact the Petitioner in order
to discuss his intentions.” App’x at 107. But “absent extraordinary
circumstances, attorney inadvertence is not excusable neglect.”6 In re
Johns-Manville Corp., 476 F.3d 118, 124 (2d Cir. 2007). Griffin’s
counsel’s late receipt of the judgment due to misunderstandings and
staffing issues is not an extraordinary circumstance that might
otherwise excuse his neglect. See In re WorldCom, Inc., 708 F.3d 327,
338-41 (2d Cir. 2013) (counsel’s failure to receive notice of a judgment
because he did not keep his ECF profile current did not constitute
excusable neglect); cf. United States v. Hooper, 43 F.3d 26, 28-29 (2d Cir.
1994) (a legal assistant’s failure to meet a filing deadline because she
misunderstood a clear rule establishing the deadline did not
constitute excusable neglect).
6 In the post-conviction context, a prisoner bears the risk of counsel’s
negligence or inadvertence, cf., e.g., Coleman v. Thompson, 501 U.S. 722, 753
(1991), unless the attorney’s error amounts to an “effective abandonment of
the attorney-client relationship,” Martinez v. Superintendent of E. Corr.
Facility, 806 F.3d 27, 31 (2d Cir. 2015) (cleaned up). Griffin’s counsel’s
failure to meet a filing deadline and his subsequent attempt to cure the error
plainly do not constitute such abandonment.

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Griffin’s counsel also contended that prison delays and a busy
caseload prevented him from meeting with Griffin in advance of the
appeal deadline to determine whether he wished to appeal. Again,
difficulties in communicating with prisoner-clients and needing to
attend to other obligations are hardly unusual occurrences for defense
attorneys. In any event, we agree with the government that Griffin’s
counsel “could have easily filed a protective notice of appeal pending
his efforts to discuss the matter further with his client.” Gov’t Br. at
33. So even if we were to credit all of Griffin’s counsel’s arguments,
they would still not excuse his untimely filing.
Second, Griffin’s contention that the district court failed to
consider all the Pioneer factors is without merit. The district court
expressly listed each of the Pioneer factors in its order but noted that
it would “concentrate primarily on the third factor.” D. Ct. Dkt. 55,
at 5. That was proper under our precedent according the third factor
“dispositive weight.” Saul, 5 F.4th at 149; see, e.g., Aksman v. Greenwich
Quantitative Rsch. LP, No. 21-2916, 2023 WL 6799770, at *1 (2d Cir. Oct.
16, 2023) (rejecting claim that district court failed to consider each
Pioneer factor when the district court “expressly listed each factor”
and focused on the third factor).
Griffin has thus failed to demonstrate his entitlement to a COA
in this appeal, so we decline to issue one and dismiss his appeal for
lack of jurisdiction. See Eltayib, 294 F.3d at 400.
III. CONCLUSION
For the foregoing reasons, we conclude that a COA is required
to appeal an order denying a Rule 4(a)(5) motion to extend the time
to appeal the denial of a habeas petition. We decline to issue one here
because Griffin has failed to demonstrate that reasonable jurists
would disagree as to whether the district court abused its discretion

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in denying his Rule 4(a)(5) motion. The appeal is accordingly
dismissed for lack of jurisdiction.7
7 In addition, Griffin’s motion for clarification and the government’s
motion to strike are dismissed as moot.

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