05-6216-pr
Digirolamo v. United States E.D.N.Y. Korman, J. 97-CV-2170 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED A ND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOM PANIED BY THE NOTATION: (SUM M ARY ORDER). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH TH E PAPER IN W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE SUM M ARY ORDER IS AVAILABLE IN A N ELECTRONIC DATABASE W HICH IS PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 22nd day of May, two thousand eight, PRESENT: HON. BARRINGTON D. PARKER, HON. RICHARD C. WESLEY, Circuit Judges, HON. MIRIAM GOLDMAN CEDARBAUM,1 District Judge. Gaetano Digirolamo Sr., Petitioner-Appellant, No. 05-6216-pr SUMMARY ORDER -v.- United States of America, Respondent-Appellee. FOR PETITIONER-APPELLANT: Steven B. Duke, New Haven, CT. FOR RESPONDENT-APPELLEE: Emily Berger, David C. James, Assistant United States Attorneys, for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Brooklyn, NY. UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. We assume the parties' familiarity with the underlying facts and procedural history of this case. Petitioner-Appellant Gaetano DiGirolamo Sr. ("DiGirolamo") appeals from the district court's denial of his petition for habeas corpus under 28U.S.C. § 2255, as well as his motion under Federal Rule of Civil Procedure 59(e). Because DiGirolamo did not file a timely notice of appeal, we lack jurisdiction to consider the denial of his habeas petition. The district court filed a Memorandum and Order on December 30, 1999 denying both DiGirolamo's petition and that of his co-defendant Louis Salerno. DiGirolamo did not file a notice of appeal until November 2005, well outside the sixty day time limit delineated by the Federal Rules. See Fed. R. App. P. 4(a)(1)(B). We have long held that "[c]ompliance with Rule 4(a) is `mandatory and jurisdictional.'" Williams v. KFC Nat'l Mgmt. Co., 391 F.3d 411, 415 (2d Cir. 2004) (quoting Browder v. Dir., Dep't of Corr., 434 U.S. 257, 264 (1978)). The Supreme Court recently reaffirmed this rule, holding that because the requirements of Rule 4(a) arise from federal statutory law, "the timely filing of a notice of appeal in a civil case is a jurisdictional requirement." Bowles v. Russell, 127 S.Ct. 2360, 2366 (2007). DiGirolamo did not submit a proper Rule 59(e) motion that would have tolled the time to file a notice of appeal. After the district court's denial of the habeas petition, DiGirolamo's counsel submitted a short letter to the district court on January 5, 2000 (the "January 5 letter"). The letter did not constitute a Rule 59(e) motion because, although it commented very briefly on the court's opinion, it did not actually articulate "with particularity" any grounds for reconsideration, nor did it even request that remedy. See Fed. R. Civ. P. 7(b)(1). Rather, the letter promised a proper submission in the future, assuring the court that after he recovered from an illness, DiGirolamo's counsel would "submit a detailed response to the Government's submissions and to your memorandum, and will ask you to reconsider and to honor your order authorizing depositions." (Emphasis added). The promised memorandum, setting forth substantive arguments for reconsideration of the denial of the habeas petition, was not filed until December 2003. The January 5 letter was, by its own terms, a "timely yet insufficient `placeholder'" submission. Feldberg v. Quechee Lakes Corp., 463 F.3d 195, 197 (2d Cir. 2006). In Feldberg, we disapproved of a similar "placeholder" letter. We wrote that while a Rule 59(e) motion need not be "comprehensive," it must nevertheless "apprise the court and the opposing party of the grounds upon which reconsideration is sought." Id. Because the January 5 letter contained only brief commentary on the court's opinion and signaled that substantive arguments would follow in a subsequent motion to reconsider, it fell short of adequately apprising the court and the opposing party of the grounds upon which reconsideration might be sought. DiGirolamo also does not demonstrate "unique circumstances" under which, as we wrote in Feldberg, the filing of an untimely or insufficient Rule 59(e) motion might toll the time limit for filing a notice of appeal. Id. at 197-98. DiGirolamo correctly notes that the district court agreed in February 2000 to treat the January 5 letter as a Rule 59(e) motion. However, the court appears to have "simply signed [an order] presented to it," without giving any "specific, direct, official judicial assurance" that it would allow DiGirolamo almost three years to articulate his legal arguments for reconsideration. Id. at 198 (citation omitted). Nor did the court even have the power to grant DiGirolamo an extension of time to complete his Rule 59(e) submission. See id. at 197 (opining that "courts may not extend the time for taking any action under Rule 59(e)"). In this case, the court did not affirmatively take any action that "misled the party who would appeal," thereby "frustrat[ing] his filing of a timely appeal." Id. at 198. The only order from which DiGirolamo's notice of appeal is timely filed is the district court's September 16, 2005 memorandum denying "petitioner's Rule 59 motion on the ground that the motion is without merit." In our view, DiGirolamo's December 2003 writing cannot be construed as a Rule 59(e) motion because it was not filed within ten days of the district court's original opinion, but should be treated rather as a motion for relief from a judgment or order under Rule 60(b)(6). See id. at 198 (construing the defective Rule 59(e) motion as a Rule 60(b) motion). We review a district court's disposition of a Rule 60(b)(6) motion for abuse of discretion. Matarese v. LeFevre, 801 F.2d 98, 107 (2d Cir. 1986). The district court did not abuse its discretion in denying DiGirolamo's Rule 60(b)(6) motion. We are unpersuaded that the motion was "made within a reasonable time." Fed. R. Civ. P. 60(c)(1). Further, although DiGirolamo energetically sets forth many arguments as to why we should revisit his habeas petition, he has failed to demonstrate "extraordinary circumstances" justifying such relief. Matarese, 801 F.2d at 106. We have considered DiGirolamo's remaining arguments and find them without merit. For the foregoing reasons, we AFFIRM the judgment of the district court. For the Court: Catherine O'Hagan Wolfe, Clerk By: 1 The Honorable Miriam Goldman Cedarbaum, of the United States District Court for the Southern District of New York, sitting by designation.