UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BRIAN LOTT,

Petitioner,

v. CASE NO. 08-14367

 HONORABLE DENISE PAGE HOOD

JEFFREY WOODS,

Respondent.

___________________________/

ORDER DENYING THE MOTION FOR RELIEF FROM JUDGMENT

OR TO ALTER OR AMEND THE JUDGMENT, BUT

GRANTING PETITIONER’S MOTION

TO PROCEED IN FORMA PAUPERIS ON APPEAL

Petitioner Brian Lott has filed a pro se appeal from the Court’s opinion and

judgment denying his habeas corpus petition on June 30, 2011. Currently pending

before this Court are Petitioner’s Motion to Proceed In Forma Pauperis on Appeal and

his Motion for either Relief from Judgment or to Alter or Amend the Judgment. Both

motions are dated December 28, 2011, and Petitioner alleges that he gave the motions

to a prison official for mailing on the same day. 

The Court construes Petitioner’s motion for relief from judgment as a request to

re-open the time to file an appeal, because the relief requested is an opportunity to file a

timely notice of appeal. The time for filing an appeal in a civil case generally is 30 days

after entry of the judgment or order appealed from. Fed. R. App. P. 4(a)(1)(A). The

district court, however, 

may reopen the time to file an appeal for a period of 14 days after the date

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when its order to reopen is entered, but only if all the following conditions

are satisfied: 

(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). 

The Court filed its dispositive opinion and judgment in this case on June 30,

2011. Petitioner alleges that he did not receive the Court’s opinion from his attorney

until December 19, 2011. Exhibits to Petitioner’s motion support this allegation. The

first exhibit is a letter, which was sent to Petitioner from his attorney. The letter is dated

December 14, 2011, and it informs Petitioner that this Court denied his habeas corpus

petition. The letter also indicates that the Court’s opinion is enclosed with the letter. 

 The second exhibit purports to be the envelope in which Petitioner’s attorney

mailed his letter and the Court’s dispositive opinion to Petitioner. The envelope is

postmarked December 16, 2011, and it appears to have been deposited in the mail in

Detroit, Michigan and sent to Petitioner’s place of confinement over three hundred miles

away in Kincheloe, Michigan. It is quite possible that the envelope did not reach the

prison until December 18, 2011, and that another day elapsed before prison officials

showed the letter to Petitioner. 

The Court concludes from Petitioner’s allegations and exhibits that he did not

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receive notice of the Court’s opinion and judgment within twenty-one days after entry of

those documents on the Court’s docket. Instead, he appears to have received notice of

the opinion and judgment on or about December 19, 2011. Thus, he has satisfied the

first condition for re-opening the appeal period. 

The second condition requires showing that the motion was filed within 180 days

after the judgment or order was entered or within 14 days after the moving party

received notice of the entry, whichever is earlier. One hundred eighty days from the

Court’s judgment was December 27, 2011, and fourteen days from the date Petitioner

allegedly received notice of the judgment was January 2, 2012. One hundred eighty

days is the earlier of the two dates and is the applicable deadline in this case. 

 Petitioner did not sign and date his motions or submit them to a prison official for

mailing until December 28, 2011. Therefore, his motion is untimely, and the Court need

not determine whether the parties would be prejudiced if the Court re-opened the time

to file an appeal. 

Petitioner has failed to satisfy all the conditions set forth in Appellate Rule

4(a)(6). Therefore, his Motion for Relief from Judgment or to Alter or Amend the

Judgment [Document #16, dated December 30, 2011] is DENIED. However, because

Petitioner alleges that he is indigent and is no longer able to pay counsel to assist him 

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on appeal, Petitioner’s Motion to Proceed In forma Pauperis on Appeal [Document #18,

dated December 30, 2011] is GRANTED. 

S/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: February 2, 2012

I hereby certify that a copy of the foregoing document was served upon Brian Lott

#525496, 16770 S. Watertower Drive, Kincheloe, MI 49788 and counsel of record on

February 2, 2012, by electronic and/or ordinary mail.

S/LaShawn R. Saulsberry 

Case Manager

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