United States District Court, E.D. North Carolina, Western Division
C. DEVER III, JUDGE
27, 2015, Eric Branch ("Branch") filed a motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 [D.E. 121]. On September 14, 2015, the
government moved to dismiss Branch's motion [D.E. 126].
On November 19, 2015, the court denied the government's
motion to dismiss and referred Branch's
ineffective-assistance claim to Magistrate Judge Gates for an
evidentiary hearing and a memorandum and recommendation
("M&R") [D.E. 130]. On December 3, 2015,
Magistrate Judge Gates appointed counsel to represent Branch
[D.E. 131]. On March 8, 2016, Judge Gates held an evidentiary
hearing. See [D.E. 139]. Following the hearing, Branch filed
two identical pro se “motion[s] requesting status of
courts consideration[, ]" in which he cited a portion of
the hearing transcript and argued that "the body of
evidence should lead this Court to find the existence of the
fact that Counsel failed to file the Notice of Appeal as she
stated in the record that she would." [D.E. 142] 2;
[D.E. 143] 2. On December 14, 2016, Judge Gates denied these
two motions as moot [D.E. 144] and issued an M&R [D.E.
145]. In that M&R, Judge Gates recommended that
petitioner's section 2255 motion be dismissed. M&R
10. Judge Gates addressed the contention in Branch's pro
se motions concerning his trial counsel's initial
indication that she would file an appeal on Branch's
behalf. See M&R 7-9.
party objected to the M&R. On March 14, 2017, the court
reviewed the M&R, the record, and the briefs, adopted the
findings and conclusions in the M&R, and dismissed
Branch's section 2255 motion [D.E. 146]. The court also
denied a certificate of appealability. Id. On the
same date, the clerk entered judgment [D.E. 147]. On
September 20, 2017, Branch moved for reconsideration [D.E.
Rule of Civil Procedure 60(b) authorizes a district court to
grant relief from a final judgment for five enumerated
reasons or for 'any other reason that justifies
relief.'" Aikens v. Ingram, 652 F.3d 496,
500 (4th Cir. 2011) (en banc). Under Rule 60(b), a movant first
must demonstrate that his motion is timely, that he has a
meritorious claim or defense, that the opposing party will
not suffer unfair prejudice from setting aside the judgment,
and that exceptional circumstances warrant the relief. See
Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403,
412 n. 12 (4th Cir. 2010); Nat'l Credit Union
Admin Bd. v. Gray, 1 F.3d 262, 264 (4th Cir. 1993).
If a movant satisfies these threshold conditions, he must
then "satisfy one of the six enumerated grounds for
relief under Rule 60(b)." Gray, 1 F.3d at 266.
states that he "was never notified nor provided with
Judge Gates' R&R by [his appointed counsel] nor
served a copy of the same by the clerk of court, " and
did not learn of the entry of judgment against him until
"September 8, 2017, while using the law library's
computer at FCI Butner[.]" Mot. Recons. 2.
"Accordingly, in light of counsel... error Mr. Branch
humbly requests this Honorable Court rescind its March 14,
2017 judgment and restart the clock from Judge Gates'
December 14, 2016's R&R to allow a timely written
objection be submitted and a appeal to the 4CCA if
has failed to establish a meritorious claim or defense. Thus,
Branch fails to meet Rule 60(b)'s threshold requirements.
To the extent Branch seeks to reopen the time for filing an
appeal, he has not presented any argument warranting
reconsideration of the court's decision to deny a
certificate of appealability. Moreover, any such argument
would be futile. Branch had 60 days from the entry of
judgment-until May 15, 2017-to appeal. Fed. R. App. P.
4(a)(1)(B); see Panhnrst, 241 F.3d at 370.
"[T]he timely filing of a notice of appeal in a civil
case is a jurisdictional requirement" Bowles v.
Russell, 551 U.S. 205, 214 (2007); see, e.g., K.C.
ex rel. Africa H. v. Shipman, 716 F.3d 107, 118 (4th
Cir. 2013); Smithy, Owen, 463 Fed.Appx. 223, 224
(4th Cir. 2012) (per curiam) (unpublished). However, Rule
4(a)(6) allows "[t]he district court [to] 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 under
limited circumstances. See Fed. R. App. P. 4(a)(6). A
district court may reopen the time to file an appeal where
the moving party proves that the following conditions are
satisfied: (1) the moving party did not receive notice of the
entry of judgment or order sought to be appealed within 21
days after entry; (2) the motion is filed within 180 days
after the judgment or order is entered or within 14 days
after the moving party receives notice of the entry,
whichever is earlier; and (3) no party would be prejudiced.
77(d) of the Federal Rules of Civil Procedure requires that
"[immediately after entering an order or judgment, the
clerk must serve notice of the entry, as provided in Rule
5(b), on each party who is not in default for failing to
appear." Fed.R.Civ.P. 77(d)(1). Here, the clerk complied
with Rule 77(d)(1) when he served notice via CMZECF of the
order and judgment on the attorney representing Branch. See
Fed.R.Civ.P. 5(b)(1). Branch received the notice to which he
was entitled when notice was served on his attorney. See,
e.g., Irwin v. Dep't of Veterans' Affairs, 498
U.S. 89, 92 (1990); McKinney v Waterman Steamship
Corp., 925 F.2d 1, 5 (1st Cir. 1991). Thus, the court denies
the court DENIES petitioner's motion for reconsideration
[D.E. 148], and DENIES a certificate of appealability.
 The court does not analyze the motion
under Rule 59(e) because it is untimely. "A motion to
alter or amend a judgment must be filed no later than 28 days
after the entry of the judgment." Fed.R.Civ.P. 59(e);
Aikens, 652 F.3d at 501. Thus, April 11, 2017, was
Branch's deadline to file a motion under Rule 59(e).
See, e.g., Fed.R.Civ.P. 6(a); Bolden v. McCabe,
Weisberg & Conway, LLC, No. DKC 13-1265, 2014 WL
994066, at *1 n.1 (D. Md. Mar. 13, 2014) (unpublished),
affd. 584 Fed.Appx. 68 (4th Cir. 2014) (per curiam)
(unpublished). The court cannot extend ...