good morning may it please the court my name is allison miller and i along with my co counsel mike bost and brock represent the petitioner having me tanner in this case at this time i would like the court's permission to reserve two minutes for a bottle thank you this case involves the appeal of the denial of a motion for relief from judgment under rule sixty secs in that motion miss tanner requested the district court to set aside and then reinstate the judgment denying her habeas petition for the purpose of the law allowing her to proceed with the appeal that respondent agents unconstitutionally prevented her from timely pursuing and now  to reverse that decision for two reasons first the district court abused its discretion and declining to follow louis freeh alexander this court's precedent which expressly authorizes the use of rule sixty  five it sets forth the time for filing a motion to extend in this court squarely address the issue that reviving the judgment did not violate that mandatory time limit and furthermore in the balls case that dealt with an extension of time so it didn't involve a rule sixty six motion it didn't involve through revival of a loss right of appeal in that case the district court directly contravene the statute by arbitrarily extending by three days the fourteen day time period in which to file a p r appeal after an order reopening the time period under rule for a six was entered and so it is i'm like the situation we have here ball's situation was directly covered by the appellate will for a sixth which deals with scituate should we understand it bows doesn't deal with precisely the procedural posture in which we find ourselves but the language of bubbles is pretty unfair about the proper application of the rule and it just seems that using  device like vacating in reentering the judgment in order to escape the the rules poor and to get around both is really not something a coup or ought to be doing leading to the appeal and so that is covered by the rule but what that rule for a six and lewis which was decided after the passage of rule for a six lisa leaves open is whether the district court can use rule rule sixty b six to revive a loss road kill for reasons other than lack of notice which is what we have here and which is what happened in lewis it was not based on a lack of notice rather it was based on a mistake and this court later decision such as f h c equities was very careful to point that out that lewis did not address the lack of notice case rather it involved a mistake either on the part of the clerk or the post office and at trying to judge and you know the true that in this case ms tanner did not she was prevented from complying with the rule by others but she had more control over whether she timely found then the was respectfully you who didn't know it all respectfully and i would disagree and pulls he was granted the motion to reopen under for a six and the problem in that case really dealt with the extension of three days for the fourteen day filing period after that relief was granted and he would have had access to the rule in order to know that the statute in the rule are explicit that it's fourteen days rather than the seventeen days that was in the district court's  order here your honor their work compelling circumstances for why ms tanner did not file a motion to extend under rule for a five in the district court abused its discretion in finding that she had failed to explain those circumstances this was represented pro se in maine who was illiterate and so she was totally dependent on the state to provide her with access to the courts and to assist her  preparing meaningful legal papers and we had the exact opposite thing happen here where she was actually actively prevented from doing that and then to further complicate matters when the district court issued its certificate of appeal ability it did not mention on timeliness and then as to ms tanner it appeared that things were proceeding as usual and it wasn't until this court entered its show cause order that she became aware of the dire circumstances met that point the time period for filing a motion to extend under forty five had already expired and so in louis this court addressed the circumstances of an attorney misreading the date stamp on an order as being a sufficient reason for failing to file that rule for a five motion and how much more compelling are the circumstances here for the litigants inability to do so going back to bulls you know not being over ruling lewis here or otherwise preventing the court's use of rule sixty six as a vehicle for reviving the judgment as i stated  to specifically limit the trial court's discretion in cases where parties were claiming that they failed to receive notice of that final judgment but that all for a place is no limitations on the district court's discretion to revive by or fresh in a judgment a lost right of appeal as was recognized by this court in lewis which was decided after the passage of rule for a sex miss miss miller could i interrupt you just a minute yes in terms of this in terms of judge given statement about isn't it cheating a little to vacate and reinstate to revive an action when we find that a that a lawyer has been an affective and handling an appeal from let's say let's take this out of the civil range now and go into the criminal range  isn't that a case where we can vacate a judgment and reinstate it so that the time to file an appeal begins to run again did you run across that at all when you were doing your research trying to think of similar situations in which we might revive an action your honor there are many cases in which courts have used this procedure  reviving a judgment to restore a loss or an appeal at the supreme court actually has a longstanding practice of doing so for parties that misread the procedure of appealing from a three district judge panel from the district court to the supreme court and when that's misfiled in the wrong court they do have a practice of vacating and ordering the court to set that aside to restart the appeal period so that even the supreme court does have a longstanding practice  of reviving lost rights of appeal through this procedure of setting aside a judgment and reinstating at the rate reason i asked is that i don't i'm not bragging here but i think i actually when i was on the state bench invented that procedure you know under tennessee law so that so that an appeal could the period for filing an appeal could run again and i'm struggling to to follow up actually trees question which interests me and wondered if you could answer if there's a more specific answer we do i mean we there is a when  when there's a founding of ineffectiveness with respect to a failure to file a notice of appeal it's pretty common to use the procedural device she referred to  i'm wondering if you fancy anything in the supreme court precedent that that relates to that pursued your post bo honor respectfully if i may submit a supplemental brief on that issue if it would be helpful to answer that specific question to make sure that we've done the research on that particular issue so returning to my argument the district court abused its discretion because lewis is still the law of the six circuit expressly authorizes the use and rule sixty six as a vehicle to restore a lost right of appeal this procedure does not violate the federal rule of appellate procedure rule for a as it's resetting the period it's not extending as and bowls were three additional days were added on to it it's not an extension it's a resetting and the district court here are not only abused its discretion in declining to follow the us but it also abuses his discretion because miss turner did establish that she would be entitled to the relief she was seeking under rule sixty six the district court actually recognized that she had established exceptional circumstances outside of her control prevented her from complying with rule for a time limits and the district court despite that expressed finding held that ms tanner could would not be entitled to relief even if it did have the authority under louis because she had failed to explain why she didn't comply with rule for a fives motion to extend the limits and i as i've stated before their record is clear that there is evidence explaining why she did not file that motion in the circumstances here are much more compelling that there lewis and so for that reason your honor this case is one of those few cases where principles of activity and fairness really cry out for the judgement to be set aside to restore to miss tanner the right of appeal that she lost due to the unconstitutional actions of state actors and for those reasons your honor if i may briefly conclude mr request this court to reverse the district court's decision and remained with instructions to grant her the relief she seeks about she good morning your honors me please the court ran a car back us from michigan attorney general's office on behalf of respondent joan you can see the question before the score is whether the federal district court judge abused her discretion and denying petitioners a second motion parolee from judgment under sixty b the abuse of discretion standard as this court is aware is a high one and according to the supreme court sixty rule sixty b proceedings are subject to only limited and deferential review the district court in this case made two findings first that it didn't have the authority to reissue its judgment and second even if it did have that authority under sixty it wouldn't have done so under the circumstances of this case i like to address the district court second fighting for east and it's the state's position that the district court didn't abuse its discretion in denying relief even if i had the authority to do so now the district court in this case denied relief under sixty b six which is the provision that petitioner relied on petitioner shouldn't have really been able to rely on that position in the first place in this court has said that if the reasons for relief from judgment can be considered i under one of the more specific clauses of sixty b that is one through five then relief can't be granted under six and this part is also said that almost every conceivable ground for relief is covered under the first three subsections motion for relief from judgment which was filed through counsel relied on sixty b sex and it's the state's position that the root provisions for relief are covered by p three even petitioner characterizes the pr employees conduct in this case as misconduct and the reason why petitioner didn't likely and vote be three is because she couldn't meet the time limits under a there is a one year timing provision under b three and so  and that sense that the sixty six motion is nothing more than an untimely b three motion and this court has said in general medicine case that a party shouldn't be allowed to escape the time limits of b three by raising it as a b six claim and that's exactly what happened in this case but even if this court were to find that it did fall under be sex or that the claim did fall under basics the district court did not abused its discretion by not reassuring its judgement under the circumstances of this case and the circumstances of this case are essentially that petitioner waited until the last minute to file the notice of appeal and the notice of appeal is a simple filing it's a one page usually one sentence filing indicating that the petition scuse me petitioner is appealing by waiting till a sensually the last minute to file it petitioner in this case was taking a risk the computer system may fail power may go out anything could happen and by waiting until the very last minute to file it she was she was taking a risk not only that but she also failed to move for an extension of time or even explain to the court why she failed to do that  him well there's been no allegation that she was prevented from filing or accessing a library the lockdown took place in this case from december third according to the petitioner to december eighth the notice of appeal was due on the eight file a notice of appeal she hasn't established that there were legitimate purposes for the lockdown but petitioner acknowledges that the lockdown ended on the eighth at that point she still had thirty days to file for an extension of time she didn't do so and she didn't even explain why she didn't do so and i think that's part of the reason what drove the district court's turn to do ruling exactly that's exactly not the be three argument that you're not the be three argument but the state does contend that  her relief does fall under b three so i think that was troubling troubling to the district court just no explanation of why she she failed to move for an extension of time petitioner says she didn't know until this court's march of zero six order that her appeal was untimely that isn't true she knew when she received the notice of appeal on december eighth that it wouldn't be filed that day should she would file it the next day she knew at that point that it was untimely the petitioner claims that she couldn't file the extension because she was a literate and pro se but these are factors that are sufficient to overcome the mandatory  jurisdictional appellate timing rules many prisoners need assistance with their legal papers and some may be less than literate if that's the task than why i have the rule i mean in this case petitioner did use a legal writer and despite all of her limitations she consistently was able to file pleadings in the district court and the sixth circuit including a timely app paid me a statistic and and all she had to do is file a motion to extend that's another routine filing and the office often sees motions for extensions of time filed by pro se prisoners it isn't anything unusual or complicated she didn't have to file a brief so that it shouldn't be  fierce she may be one of the individuals who's not even able to it's and i mean it sounds like she may be somebody who's not even able to ride that i am not sure about i agree that's not in the record but you know if you're illiterate composing even a very simple motion for extension of ten might be beyond your capability i'm not sure about that but she did have legal assistance available to her and those reasons shouldn't be sufficient to excuse her failure to comply without which she had had legal assistance but i'm not sure you would say it was effective assistance of counsel that's just an observation i mean this she was she didn't have a lawyer she had somebody in the prison helping her she had legal writers at the present helping her and they often help pro se presenters there i believe experienced legal writers it when they were fellow prisoners but  she did have assistance and she was able to timely file other oh maybe maybe she can sue that we go ryder for malpractise you think she may be able to do that i am not i'm not sure about that but it in any event the state contends that it was not abuse of discretion for the district court in this case to find that petitioner feel to show extraordinary that extraordinary circumstances per prevented her from pursuing her appeal this court has recognized repeatedly that there are strict limits to relief under rule sixty b that relief under sixty b is limited by public favoring finality of judgments and terminations of litigation in relief under b six the provision that that petitioner relies on is even more difficult to show she must show extraordinary circumstances justifying the reopening of a judgment and supreme court has said it doesn't again the district court we were told that the district court found that there were exceptional circumstances in this case i believe what the district court did is it  that i think it assumed it said that while petitioner may have shown extraordinary circumstances prevented her from timely filing a notice of appeal it she didn't show extraordinary circumstances that prevented her from pursuing her appeal and can you before you go wrong with your argument can you describe this civil case she apparently has a nine hundred eighty three case yes there can you can you sort of summarize it for me and tell me where that is in the sherry or outside of petitioner apparently filed a civil suit against the m d o c officials in this case it was in two thousand and seven i believe she received a judge she was asking for i believe one hundred thousand dollars compensatory damages and two hundred thousand dollars in punitive damages what was the crime the claim was interference with access to court ok and she ended up proceeding to trial in two thousand and twelve and she did get a jury verdict where the jury did find a general sense of liability on the part of the two prison officials  involved and the the verdict i believe is part of this record jury essentially found that her constitutional right to access to the courts were violated by these two individuals and it awarded her less than she thought less than she thought she she was awarded a twenty thousand dollars in compensatory damages and five thousand dollars in punitive damages so that case is over after that case petition filed her second motion for relief from judgment in the district we go back just a minute so the what was the nature of the crime against the two prison officials that that impeded her access to court it was a violation that they prevented her from timely filing her and the state contends that that some of the items the petitioner and asked the court to take judicial notice of are her assertions of what happened that if the court does take traditional notices should also take judicial notice of the verdict form which kind of indicates a general sense of liability i don't know that the jury found any any militias or anything beyond like what they found like findings but they found punitive damages so that tells you something about the degree or level of culpability that you saw that that the jury thought they had i mean i don't know what you how what exactly w use we make of that but i mean to try to minimize it really doesn't seem to be terribly helpful to you but they did they did grant her punitive damages significantly less than she thought that they that she sought but they but they did your your honor is right about that but what the district court had to consider with respect to the sixty b motion was more than just the civil judgment that she had the district court the question before the district court was a broader question it wasn't just the conduct of the m t o sea and that two officials it was what was petitioner doing all this time and why did she wait to the last minute to file a notice of appeal why didn't she move for an extension of time the conduct by the officials at the end you know see didn't prevent her in any way or hasn't been alleged that they prevented her in any way from filing an extension of time you know under your theory and i understand you were saying that met with them and that there was a finding that they impede or access the court that they didn't totally prevent her from accessing court yes but under your theory i'm just sort of to prevail well that was one really that that was one basis for the district court's finding but even if the district court and we contend the district court was not wrong and finding that it did not have the authority bowles both contain some very  unequivocal language emphasizing the courts can't carve out equitable exceptions to jurisdictional requirements and that was what was involved in this case and i think that broader language and balls does support the district court's decision the appellate timing roams rules are firm and the parties can't use sixty to reopen that the time to file a notice of appeal your time is thank you and like to respond to jim's two brief points the first being the contention that this is a rule sixty b three motion in a rule sixty six clothing that's simply not true rule sixty three is in cases of misconduct of the opposing party but that rule applies in cases where the misconduct lead to the entry of the judgment that's being appealed from and so typically you see that in cases where a party hid discovery and so the other party was unfairly deprived of a defense to the order that was entered that's not what we have here where the misconduct occurs after the entry of the order the only case that counsel was able to locate that contains similar allegations that the unconstitutional actions of the state actors denying access to the courts prevented the petitioner from timely complying with court deadlines was brick for the collins in that case also analyzed those claims under rule sixty b six expressly finding that it did not fall neatly within the other five subsections in that case and preferred also recognize that if the allegations of unconstitutional conduct were true it would warrant the type of extreme situation that mandates relief under rule sixty six and finally i'd like to turn to the point of petitioner somehow waiting to the last minute to file her notice of appeal there is in the record your honour's if if the court takes judicial notice that the reason petitioner did not file her notice of appeal until a few days before was because she was dependent on responded to provide her with a certificate of account activity for her in inform populous petition that she was filing together with them and that was the reason for the delay but but nonetheless she was in the position that she was in necessitating her to even try to figure out how to file a motion to extend because of the unconstitutional actions of respondents agents and that's something that should not be lost on this court and i see my time is up and i thank you for your argument that we'll consider the case carefully