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Sixth Circuit: COA Not Required to Appeal Order Denying Rule 4(a)(5) Motion for Extension of Time to File Notice of Appeal

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit held that a Certificate of Appealability (“COA”) is not required when appealing a district court’s order denying a motion for an extension of time to file a notice of appeal brought pursuant to Federal Rule of Appellate Procedure 4(a)(5) (“Rule 4(a)(5)”).

In August 2015, Serwan Mizori filed a pro se motion for sentence reduction under 28 U.S.C. § 2255, alleging ineffective assistance of counsel. Nearly four years later, the U.S. District Court for the Western District of Michigan denied Mizori’s § 2255 motion on July 17, 2019. He had 60 days—until September 15, 2019—to file his notice of appeal.

But at the time of the district court’s order, Mizori was confined in the high-security Special Housing Unit (“SHU”) at the Federal Correctional Institution in Estill, South Carolina. On October 7, 2019, Mizori timely filed his Rule 4(a)(5) motion seeking an extension of time to file his notice of appeal. He asserted that he had “good cause” in that he had been held in the SHU until September 29, 2019; that “federal correctional officers” in the SHU had “hindered and impeded” him from filing the notice of appeal by denying him access to postage stamps, paper and envelopes; and that he “was further denied access to the law library” during this time.

The district court denied Mizori’s motion, stating that “Mizori has not met his burden of establishing excusable neglect for failing to file timely his notice of appeal.” Nothing in the district court’s denial addressed Mizori’s “good cause” ground raised in his motion. Mizori appealed.

The Sixth Circuit appointed counsel for Mizori and directed counsel for both sides to address, as a threshold matter, the question of whether Mizori needs a COA to bring his appeal. The Court observed: “unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from –

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or

(B) the final order in a proceeding under section 2255.” 28 U.S.C. § 2253(c)(1).

The U.S. Supreme Court has explained that “the final order” as used in § 2253(c)(1)(A) are “final orders that dispose of the merits of a habeas corpus proceeding—a proceeding challenging the lawfulness of the petitioner’s detention.” Harbison v. Bell, 556 U.S. 180 (2009).

The fact that Harbison addressed § 2253(c)(1)(A)’s final orders concerning habeas corpus challenges to state court judgments whereas Mizori’s case challenges a federal court judgment under § 2255 addressed by § 2253(c)(1)(B)’s provision regarding final orders is not a material difference with respect to Harbison’s definition of “final order,” the Court explained. Thus, only orders that “dispose of the merits” of a § 2255 proceeding constitute “the final order” under § 2253(c)(1)(B). See Harbison; see also Pouncy.

In the instant case, the district court’s two-page order denying Mizori’s motion under Rule 4(a)(5) did not “dispose of the merits” of his § 2255 motion, according to the Court. The district court’s July 2019 order had already done that. The order that Mizori was appealing said nothing about the merits of his underlying § 2255 motion. Consequently, the Court concluded that Mizori wasn’t required to obtain a COA in order for him to appeal the order denying his Rule 4(a)(5) motion.

The Court turned to the district court’s denial of that motion, which was reviewed for an abuse of discretion. Nicholson v. City of Warren, 467 F.3d 525 (6th Cir. 2006). Rule 4(a)(5)(A)(ii) allows a district court to “extend the time to file a notice of appeal” if the party seeking the extension “shows excusable neglect or good cause.” The Court explained that excusable neglect and good cause are different concepts. The district court decided Mizori’s motion on the ground that he “had met his burden of establishing excusable neglect for failing to file timely his notice of appeal,” but Mizori had sought relief on the basis of good cause. Thus, the Court determined that the district court used an erroneous legal standard when denying Mizori’s motion, which is an abuse of discretion. Kuhn v. Sulzer Orthopedics, Inc., 498 F.3d 365 (6th Cir. 2007).

To show good cause, Mizori had to establish that his failure to timely file was the result of  “forces beyond”  his control. Nicholson. The Court observed that neither  “the district court nor the government dispute the adequacy of [the facts offered by Mizori] to find good cause” and concluded that Mizori established good cause.

Accordingly, the Court reversed the district court’s order and remanded for the limited purpose of allowing Mizori to file a notice of appeal of the district court’s July 17, 2019, order denying his § 2255 motion. The Court stated that it will then determine whether Mizori is entitled to a COA as to that order. See: United States v. Mizori, 23 F.4th 702 (6th Cir. 2022). 

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Related legal case

United States v. Mizori



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