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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

WILLIE ARTHUR SULLEN, )

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Petitioner,

vs. CIVIL ACTION NO. 14-0112-CG-M

CYNTHIA STEWARD, 

Respondent.

ORDER

The United States Court of Appeals for the Eleventh Circuit sua sponte

remanded this case “for a determination as to whether [Willie Arthur Sullen] 

is eligible for relief” under Federal Rule of Appellate Procedure 4(a)(6). (Doc. 

29). 

KGROUND

A jury convicted the Petitioner (“Sullen”) of first-degree domestic 

violence on May 26, 2010, and the Mobile County Circuit Court sentenced 

him to serve twenty-five years in the state penitentiary. (Doc. 1, p. 2). On 

appeal, the Alabama Court of Criminal Appeals affirmed the conviction (Doc. 

10, Exhibit A). Sullen sought neither a rehearing in the Alabama Court of 

Criminal Appeals nor certiorari in the Alabama Supreme Court (see Doc. 1, p. 

3). The certificate of final judgment was entered on March 9, 2011 (Doc. 10, 

Exhibit C).

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Sullen filed a Rule 32 petition on August 25, 2011 in the Mobile 

County Circuit Court (see Doc. 1, p. 4). On July 1, 2012, Sullen filed a 

petition for writ of mandamus with the Alabama Court of Criminal Appeals, 

seeking to force the circuit court to rule on his Rule 32 petition (Doc. 10, 

Exhibit E; see also Doc. 10, p. 3). On September 7, 2012, the appellate court 

denied the mandamus petition, finding that the circuit court judge denied 

Sullen’s request for in forma pauperis status on September 26, 2011, and that

because Petitioner had never paid a filing fee, the Rule 32 petition had not 

been properly filed (Doc. 10, Exhibit F). On November 28, 2012, Sullen filed a 

second petition for writ of mandamus, seeking again, to have the lower court 

to rule on his Rule 32 (Doc. 10, Exhibits D, G). On February 7, 2013, the 

Alabama Court of Criminal Appeals again denied the petition for the same 

reasons it denied the first petition (see Doc. 10, Exhibit H). On March 3, 

2014, Sullen’s petition for certiorari was struck by the Alabama Supreme 

Court for his failure to comply with Court rules (Doc. 10, Exhibit I).

Petitioner filed a complaint with this Court on March 5, 2014 raising 

the following claims: (1) His attorney rendered ineffective assistance; and (2) 

the State Courts improperly dismissed his Rule 32 petition after failing to 

rule on it for more than two years. (Doc. 1).

Respondent answered the petition, arguing that it should be dismissed 

as it was not filed within the one-year statute of limitations period (Doc. 10, 

pp. 5-8). Respondent refers to provisions of the Anti-Terrorism and Effective 

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Death Penalty Act of 1996 (hereinafter AEDPA) that amended, in pertinent 

part, 28 U.S.C. § 2244. On July 10, 2014, the Magistrate Judge entered a 

report and recommendation with the finding that the Petitioner’s claims were 

time-barred and due to be dismissed. (Doc. 13). 

On August 8, 2014, this Court adopted the Magistrate Judge’s report 

and recommendation and entered a judgment denying and dismissing the 

petitioner’s habeas petition. (Doc. 16). On December 30, 2014, the petitioner 

sent a letter to the court requesting information concerning his case. (Doc. 

19). 

On April 17, 2015, the Eleventh Circuit Court of Appeals sua sponte

entered a remand order stating that Petitioner’s letter requesting 

information concerning the case must be liberally construed as a motion to 

reopen the appeal period. 

ANALYSIS

Petitioner may not have received actual notice of the district court's 

August 8, 2014 order denying his habeas petition and did not appeal the 

order within the 30–day time period set forth in Rule 4(a). Under Rule 4(a), 

the petitioner had 30 days from August 8, 2014, the date Judgment was 

entered, or until September 6, 2014, to timely file a notice of appeal. Vencor 

Hospitals, Inc. v. Standard Life & Acc. Ins. Co., 279 F.3d 1306, 1309 (11th 

Cir. 2002)(Pro se litigants, like counseled parties, must adhere to time 

requirements); see also Garvey v. Vaughn, 993 F.2d 776, 780 (11th Cir. 1993). 

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Ordinarily, a habeas petitioner's failure to timely file a notice of appeal is 

“fatal” to his appeal, “because the timely filing of a notice of appeal is 

mandatory and jurisdictional.” Hollins v. Dep't of Corr., 191 F.3d 1324, 1326 

(11th Cir. 1999).

Prior to 1991, neither the Federal Rules of Civil Procedure nor the 

Federal Rules of Appellate Procedure contained provisions permitting an 

extension of the time limit for filing an appeal when a party entitled to 

receive notice of the entry of a judgment or order fails to receive such notice. 

Vencor, 279 at 1309. In 1991, however, Federal Rule of Appellate Procedure 

4(a) was amended to include subsection (6), which states:

(6) Reopening the Time to File an Appeal. The district court may 

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

date 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). By providing a limited opportunity to reopen the time 

for appeal, Rule 4(a)(6) “balances the inequity of foreclosing appeals by 

parties who do not receive actual notice of a dispositive order against the 

need to protect the finality of judgments.” Vencor, 279 at 1309. Due to the

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policy to “liberally construe” pro se pleadings, the Court considers his letter 

requesting information about his case as a motion to reopen under Fed. R. 

App. 4(a)(6). See e.g. Tannenbaum v. U.S., 148 F.3d 1262, 1263 (11th Cir. 

1998) (“Pro se pleadings are held to a less stringent standard than pleadings 

drafted by attorneys and will, therefore, be liberally construed.”)(internal 

citations omitted); see also Sanders v. U.S., 113 F.3d 184, 187 (11th Cir. 

1997)(finding that pro se petitioner’s notice should be treated as a motion to 

reopen under Rule 4(a)(6) when it was clear he never received the District 

Court’s order dismissing the case). It is necessary then, to consider whether 

the Sullen meets the three conditions set forth in Fed. R. App. P. 4(a)(6) and 

may reopen the time period to appeal. 

The first condition is that the moving party, here, Willie Arthur Sullen,

did not receive notice under Fed. R. Civ. P. 77(d) of the entry of the judgment. 

Non-receipt is difficult to conclusively prove. Nunley v. City of Los Angeles, 

52 F.3d 792, 796 (9th Cir. 1995). The party seeking to reopen the time for 

appeal under Rule 4(a)(6) bears the burden of proving non-receipt of notice. 

McDaniel v. Moore, 292 F.3d 1304, 1307 (11th Cir. 2002). However, “[w]hile 

Rule 4(a)(6) puts the burden on the moving party to demonstrate non-receipt, 

the rule does not mandate a strong presumption of receipt.” Nunley, 52 F.3d 

at 796; see also McDaniel, 292 F.3d at 1307. Indeed, the purpose of the rule is 

to “provide relief from the risk of non-receipt.” Nunley, 52 F.3d at 795. Sullen 

provided no direct evidence or affidavit of non-receipt. However, his letter has 

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every indication of non-receipt, when he wrote “I want to know the status of 

case no. civil action 14-0112-CG-M.” (Doc. 19). Due to the policy to “liberally 

construe” pro se pleadings, the Court considers his letter requesting 

information as indication of non-receipt. (Doc. 19). 

The second condition is that the moving party file a motion to reopen 

within 180 days of the judgment or within 14 days of notice under Fed. R. 

Civ. P. 77(d). Here, the Court entered judgment in the case on August 8, 2014 

and the Petitioner sent his letter on December 30, 2014. Under the “mailbox 

rule,” the court deems the letter filed on the date Sullen delivered it to prison 

authorities for mailing, presumptively, December 30, the day that he signed 

it. See Houston v. Lack, 487 U.S. 266, 271–72, 108 S.Ct. 2379, 101 L.Ed.2d 

245 (1988); see also United States v. Hughes, 432 F. Supp. 2d 1250, 1251 

(M.D. Ala. 2006); Washington v. U.S., 243 F.3d 1299, 1301 (11th Cir. 2001). 

Thus, Sullen’s letter falls well within the 180-day time limit as required by 

Fed. R. App. P. 4(a)(6). 

The final condition is that “no party would be prejudiced” by reopening 

the appeal period. The Advisory Committee Note from 1991 defines prejudice

as “some adverse consequence other than the cost of having to oppose the 

appeal and encounter the risk of reversal, consequences that are present in 

every appeal. Prejudice might arise, for example, if the appellee had taken 

some action in reliance on the expiration of the normal time period for filing a 

notice of appeal.” Fed. R. App. P. 4(a)(6) committee note. Here, the

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Respondent has not demonstrated any reliance on Mr. Sullen’s failed habeas 

petition and it is also unlikely that she will be prejudiced by reopening the 

appeal period. 

Therefore, Sullen fulfills the three requirements of Fed.R.App.P. 

4(a)(6) and it is within this Court’s discretion to reopen the appeal period for 

14 days. The petitioner having already filed the notice of appeal, which the 

Court deems as both a motion to reopen the appeal period as well as the 

required notice of appeal, the Court finds that it is timely filed.1

CONCLUSION

Accordingly, the Court REOPENS the appeal period for 14 days

pursuant to Fed. R. App. P. 4(a)(6), and finds that Sullen’s appeal is timely

filed. The Clerk is directed to return the case, supplemented with this Order, 

to the Court of Appeals.

DONE and ORDERED this 4th day of May, 2015.

/s/ Callie V. S. Granade

UNITED STATES DISTRICT JUDGE

 1 Reopening the period for appeal does not change the Court’s prior order

denying Sullen’s certificate of appealability and finding that Sullen is not

entitled to appeal in forma pauperis.

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