Andre Paige v. Ronnie Holt , 439 F. App'x 169 ( 2011 )

DLD-229 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 11-2155
____________
ANDRE PAIGE,
Appellant,
v.
RONNIE HOLT, WARDEN
__________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 10-cv-00701)
District Judge: Honorable Malcolm Muir
__________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
July 8, 2011
Before: FISHER, BARRY and VAN ANTWERPEN, Circuit Judges.
(Filed: July 15, 2011)
____________
OPINION
____________
PER CURIAM
Appellant Andre Paige was sentenced on January 27, 2006, in the United States
District Court for the Middle District of Florida to life imprisonment for aiding and
abetting murder with the intent to prevent communication to a federal official relating to
commission of a federal offense, in violation of 18 U.S.C. § 1512(a)(1)(C). The Court of
Appeals for the Eleventh Circuit affirmed on July 18, 2007 in United States v. Paige, 241
Fed. Appx. 620, 624-25 (11th Cir. 2007), holding, among other things, that a reasonable
jury could find that Paige and his co-defendants killed Officer Horner to prevent him
from reporting their robbery activities. Paige timely filed a motion to vacate sentence, 28
U.S.C. § 2255, in the sentencing court, alleging nine grounds for relief, including
prosecutorial misconduct and ineffective assistance of counsel. That motion was denied.
See Paige v. United States, 2009 WL 700659 (M.D. Pa. March 16, 2009).
Paige, an inmate at the United States Penitentiary – Canaan in Waymart,
Pennsylvania, then filed a petition for writ of habeas corpus, 28 U.S.C. § 2241, in the
United States District Court for the Middle District of Pennsylvania, in which he
challenged his conviction and sentence. In an order entered on April 12, 2010, the
District Court dismissed the petition for lack of jurisdiction, concluding that persons
convicted in federal court are required to bring their collateral attacks challenging the
validity of their conviction and sentence under 28 U.S.C. §2255, and not 28 U.S.C.
§ 2241. Paige did not timely appeal this order.
On January 3, 2011, Paige filed a motion for reconsideration in the district court,
invoking Federal Rule of Civil Procedure 60(b) and asserting that he first learned on
December 8, 2010, that his case had been dismissed. He asked that his case be reopened
under Federal Rule of Appellate Procedure 4(a)(6), because the Clerk of the District
Court failed to provide him with a copy of the order as required by Federal Rule of Civil
2
Procedure 77(d). Paige also urged the District Court to consider his federal habeas
corpus petition on the merits.
In an order entered on April 18, 2011, the District Court denied Rule 60(b) relief
and denied Paige’s request to extend the time to appeal under appellate Rule 4(a)(6). The
court held that Paige’s claim of error was cognizable under subparagraph (6), the catch-
all provision of Rule 60(b), but he was unable to demonstrate the existence of any
extraordinary circumstances that would warrant reopening his case. He had merely
reasserted his baseless contention that he could resort to federal habeas corpus to
challenge his conviction and sentence, and Rule 60(b)(6) may not be used as a substitute
for an appeal. The District Court also determined that Paige’s motion for an extension to
appeal under appellate Rule 4(a)(6) was untimely filed.
Paige has timely appealed the District Court’s order denying his Rule 60(b)
motion and motion for an extension to appeal under appellate Rule 4(a)(6). We have
jurisdiction under 28 U.S.C. § 1291. Our Clerk advised Paige that we might act
summarily to dispose of the appeal.
We will summarily affirm the order of the District Court because no substantial
question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. We review
the denial of a Rule 60(b) motion for an abuse of discretion. See, e.g., Reform Party of
Allegheny County v. Allegheny County Dep’t of Elections, 174 F.3d 305, 311 (3d Cir.
1999). Relief in the form of reopening the judgment is available only when the case
presents extraordinary circumstances. See, e.g., Martinez-McBean v. Gov’t of Virgin
3
Islands, 562 F.2d 908, 911 (3d Cir. 1977). The District Court correctly determined that
Rule 60(b) relief is not intended to be a substitute for an appeal, nor does an assertion of
legal error warrant reopening the judgment. United States v. Fiorelli, 337 F.3d 282, 288
(3d Cir. 2003) (Rule 60(b) motion may not be used as a substitute for an appeal, and legal
error, without more, does not warrant relief under that provision). Accordingly, the court
did not abuse its discretion in denying Paige’s Rule 60(b) motion.
We review the denial of a motion for an extension of time to appeal under
appellate Rule 4(a)(6) for an abuse of discretion. United States v. Rinaldi, 447 F.3d 192,
195 (3d Cir. 2006). Rule 4(a)(6) provides that 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”
where “the court finds that the moving party did not receive notice under Federal Rule of
Civil Procedure 77(d) of the … order sought to be appealed within 21 days after entry,”
and “no party would be prejudiced.” Fed. R. App. Pro. 4(a)(6)(A), (C). But any motion
for an extension under this rule must be “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.” Id. at Rule 4(a)(6)(B)
(emphasis added).
The District Court correctly determined that Paige’s motion needed to be filed on
or before Monday, October 12, 2010, see Fed. R. Civ. Pro. 6(a)(1)(C) (if last day of filing
period is Saturday, filing period extended until the following Monday), because this date
is earlier than December 22, 2010, which was fourteen (14) days after the date when
4
Paige learned of the court’s order. Paige’s motion for an extension was not filed until
January 3, 2011, more than two months beyond the October 12, 2010 deadline, and, even
if he gave his motion to prison authorities for mailing on December 14, 2010, as his
certificate of service indicates, his motion is still untimely filed because the due date for
his motion under Rule 4(a)(6)(B) was the earlier of October 12, 2010 or December 22,
2010. Accordingly, the court did not abuse its discretion in denying Paige’s motion for
an extension of time to appeal.1
For the foregoing reasons, we will summarily affirm the order of the District Court
denying Paige’s Rule 60(b) motion and motion for an extension of time to appeal under
appellate Rule 4(a)(6).
1
For Paige’s benefit, we note that, even if he had timely appealed the District
Court’s original order, we would have summarily affirmed. As fully explained by the
District Court, a motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the exclusive
means to challenge collaterally a federal conviction or sentence. See Davis v. United
States, 417 U.S. 333, 343-44 (1974). Under the explicit terms of 28 U.S.C. § 2255,
unless a section 2255 motion would be “inadequate or ineffective,” even a federal habeas
corpus petition cannot be entertained by a court. See Application of Galante, 437 F.2d
1164, 1165 (3d Cir. 1971). Section 2255 is not inadequate or ineffective simply because
Paige may be prevented by the gatekeeping requirements of the statute, see 28 U.S.C.
§ 2255(h), from litigating his claims in a second or successive section 2255 motion.
5