United States District Court, D. Maryland
L. HOLLANDER, UNITED STATES DISTRICT JUDGE
Memorandum, I consider a post-conviction petitioner's
requests for issuance of a Certificate of Appealability in
regard to two post-conviction convictions that were
previously denied by this Court.
Michelle Hill, Petitioner, filed motions to vacate under 28
U.S.C. § 2255 in two criminal cases. In ELH-13-0248
(“Case I”), Hill entered a plea of guilty to the
charges of conspiracy to commit wire fraud, in violation of
18 U.S.C. § 1349, and aggravated identity theft, in
violation of 18 U.S.C. § 1028(a)(1). In ELH-15-0586
(“Case II”), Hill entered a plea of guilty to the
offenses of conspiracy to commit bank fraud, in violation of
18 U.S.C. § 1349; aggravated identity theft, in
violation of 18 U.S.C. § 1028(a)(1); and the commission
of an offense while on pre-trial release, in violation of 18
U.S.C. § 3147(1).
Court conducted a joint sentencing on June 24, 2016.
See Case I, ECF 88; Case II, ECF 109. In accordance
with Fed. R. Crim. P. 11(c)(1)(C), Hill received a total
sentence of eight years' imprisonment as to Case I, and a
total sentence of ten years in Case II, concurrent with the
sentence in Case I. She was also ordered to pay restitution.
Judgments were entered on June 30, 2016. See Case I,
ECF 90; Case II; ECF 110. No. appeal was noted as to either
subsequently filed post conviction petitions in both cases,
which were denied in a consolidated Memorandum Opinion and
Order docketed on June 13, 2018. See Case I, ECF
122, ECF 123; Case II, ECF 226, ECF 228. For each petition, I
denied a Certificate of Appealability (“COA”),
but pointed out to Petitioner that my decision as to a COA
did not preclude her from seeking a COA from the appellate
court. See, e.g., Case I, ECF 122 at 31
took no action in regard to the disposition of her post
conviction petition until on or about December 13, 2018. At
that time, she submitted a request to the United States Court
of Appeals for the Fourth Circuit, asking for an extension of
time to seek a COA as to both cases. See Case I, ECF
124; see also ECF 124-1; Case II, ECF 229. Hill
explained that she received this Court's rulings on June
21, 2018. Id. But, she claimed that in “Aug.
2018, ” her “mental illness . . . became an
unbearable factor leaving [her] mentally and emotionally
incompetent.” Id. She did not indicate a
particular date in August when she became disabled, nor did
she explain why she took no action from June 21, 2018 through
July 2018. Id. Moreover, Hill claimed that in
September 2018, she was transferred to a new institution, and
was without her “legal paperwork” until December
Chief Deputy Clerk for the United States Court of Appeals for
the Fourth Circuit wrote a letter to Petitioner on January 2,
2019, advising that the motion for extension of time to file
a COA had been received. Case I, ECF 124-2; Case II, ECF 229
at 3. The Fourth Circuit's date of receipt was not
specified. In any event, the Chief Deputy Clerk advised Ms.
Hill that her motion “should be addressed to the
federal district court.” Id.
by letters dated January 21, 2019 (docketed January 28,
2019), Ms. Hill submitted a request to this Court for an
extension of time in which to file a request for a COA.
See Case I, ECF 124-1; Case II, ECF 229.
government has filed a joint opposition to the motions for
extension of time. See Case I, ECF
In its opposition, the government asserts that Hill had 14
days in which to note an appeal. It cites Fed. R. App. P.
4(b), which governs appeals in a criminal case. However,
post-conviction proceedings are docketed as civil cases.
Hill has replied. Case I, ECF 126; Case II, ECF 232. Among
other things, Hill asserts that she was entitled to 60 days
to note an appeal, pursuant to Rule 4(a)(1)(B)(i). That rule
states: “A notice of appeal may be filed by any party
within 60 days after entry of the judgment or order appealed
from if one of the parties is: (i) the United States.”
Because Hill received the Court's Order denying
post-conviction relief on June 21, 2018, she claims she had
until August 19, 2018, to seek a Certificate of
Appealability. Id. But, she claims that she became
mentally incompetent “on or around August 1, 2018,
” and was unable to function. Id. And, because
Hill was moved to a new institution in September 2018, she
adds that she was without her legal materials until December
12, 2018. Id.
filing of a notice of appeal is “mandatory and
jurisdictional.” Budinich v. Becton Dickinson &
Co., 486 U.S. 196, 203 (1988). Under Fed. R. App. P.
4(a)(1)(A), the notice of appeal in a civil case generally
“must be filed with the district clerk within 30 days
after entry of the judgment or order appealed from.”
However, a notice of appeal may be filed “by any party
within 60 days after entry of the judgment or order”
if, inter alia, “one of the parties is: [i]
the United States . . . .” Fed. R. App. P. 4(a)(1)(B).
App. P. 4(a)(5) governs motions for extension of time in
which to ...