IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Rodney Conley,

Petitioner,

v. Case No. 2:11-cv-1142

Warden, Ross Correctional

Institution,

Respondent.

OPINION AND ORDER

Petitioner has filed an objection to the magistrate judge’s

December 20, 2013, report and recommendation recommending denial of

his request for a certificate of appealability and his request to

proceed in forma pauperis on appeal. See Doc. 35. The report and

recommendation advised petitioner that objections had to be filed

within fourteen days after service. Doc. 34, p. 2. Petitioner’s

objection was filed on January 16, 2014. However, petitioner

states in his objection that the envelope in which he received the

report and recommendation was postmarked December 23, 2013, and

that, due to the fact that he had been transferred at some

undisclosed date from the Ross Correctional Institution to the

institution in Mansfield, Ohio, there was an additional delay of

five to seven days before he received the report and

recommendation. The objection is dated January 11, 2014. The

court will therefore address the objection. Pursuant to 28 U.S.C. 

636(b), this court has conducted a de novo review.

On September 5, 2013, this court issued an order adopting the

magistrate judge’s April 25, 2013, report and recommendation which

addressed the merits of petitioner’s habeas petition under 28

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U.S.C. §2254, and recommended dismissal of the petition. This

court also certified that an appeal would not be taken in good

faith, and that a certificate of appealability should be denied. 

See Doc. 30. On December 2, 2013, petitioner filed a notice of

appeal, which the magistrate judge also construed as a request for

a certificate of appealability. See Doc. 32. On December 16,

2013, petitioner filed a motion for leave to file a delayed appeal. 

He also submitted an affidavit of indigency, seeking leave to

proceed on appeal in forma pauperis. See Doc. 33.

In his December 20, 2013, report and recommendation, the

magistrate judge noted that petitioner’s notice of appeal was

untimely under Fed. R. App. P. 4(a)(1)(A). That rule requires that

a notice of appeal be filed no later than thirty days from the date

of the district court’s judgment entered on September 5, 2013. The

deadline for filing the notice of appeal was October 5, 2013. Doc.

34, p. 1. The magistrate judge further noted that under Fed. R.

App. P. 4(a)(5)(A), an extension of time to appeal could be granted

if the motion requesting the extension is filed no later than

thirty days after the time for appeal had expired, in this case, no

later than November 4, 2013. Doc. 34, pp. 1-2. Petitioner did not

file his notice of appeal until December 2, 2013, and he did not

file his motion for leave to file a delayed appeal until December

16, 2013, beyond the time limits specified in Rule 4(a)(5)(A). The

magistrate judge concluded that petitioner’s notice of appeal was

untimely. Doc. 34, p. 2. The magistrate judge further noted that

this court had already determined in its order of September 5,

2013, that a certificate of appealability should not issue. The

magistrate judge recommended the denial of petitioner’s motion for

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leave to file a delayed appeal and for a certificate of

appealability. Doc. 34, p. 2.

In his January 16, 2014, objection to the December 20, 2013,

report and recommendation, petitioner did not address the issues

discussed by the magistrate judge in that report and

recommendation. Rather, he repeated arguments concerning the

merits of his claim that the statements of the victim introduced at

trial as a dying declaration constituted inadmissible hearsay. He

also alleged that his conviction was against the manifest weight of

the evidence.

As to petitioner’s motion for a delayed appeal, the court

notes that compliance with Rule 4(a) is a mandatory prerequisite

that this court may neither waive nor extend. Bowles v. Russell,

551 U.S. 205, 214 (2007); Ultimate Appliance CC v. Kirby Co., 601

F.3d 414, 415-16 (6th Cir. 2010). This court may not enlarge the

time for filing a notice of appeal except as authorized in Rule 4. 

Fed. R. App. P. 26(b). A district court may reopen the time to

file an appeal pursuant to Fed. R. App. P. 4(a)(6) for a period of

fourteen days after the date when its order to reopen is entered,

if:

(A) the court finds that the moving party did not receive

notice under Federal Rule of Civil Procedure 77(d) of the

entry of the judgment or order sought to be appealed

within 21 days after entry;

(B) the motion is filed within 180 days after the

judgment or order is entered or within 14 days after the

moving party receives notice under Federal Rule of Civil

Procedure 77(d) of the entry, whichever is earlier; and

(C) the court finds that no party would be prejudiced.

Fed. R. App. P. 4(a)(6)(A)-(C).

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The docket reflects that the final judgment of dismissal of

this action was mailed to petitioner on September 5, 2013. His

only arguments in support of a delayed appeal are that he had no

knowledge of the law, that he had been confined in isolation, and

that the law library was not sending him the law he needed to

pursue his appeal. This is insufficient to satisfy the

requirements of Rule 4(a)(6). This court previously held in its

order of September 5, 2013, that a certificate of appealability was

not warranted, and petitioner has advanced no arguments in his

objection which would convince the court otherwise.

Petitioner’s objection (Doc. 35) to the report and

recommendation is denied. The report and recommendation (Doc. 34)

is adopted and affirmed. Petitioner’s motion for leave to file a

delayed appeal and to proceed in forma pauperis (Doc. 33) and his

request for a certificate of appealability are denied.

Date: February 4, 2014 s/James L. Graham 

 James L. Graham

 United States District Judge 

 

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