Hector A. Martinez v. Robert Hoke, Superintendent, E. Corr. Facility, 38 F.3d 655 (2d Cir. 1994). · Go Syfert
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Hector A. Martinez v. Robert Hoke, Superintendent, E. Corr. Facility, 38 F.3d 655 (2d Cir. 1994). Cases Citing This Book View Copy Cite
28 citation events (17 in the last 25 years) across 8 distinct courts.
Strongest positive: Griffin v. Lamanna (nynd, 2024-10-24)
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
examined Cited as authority (rule) Griffin v. Lamanna (3×) also: Cited "see, e.g."
N.D.N.Y. · 2024 · confidence medium
Martinez v. Hoke, 38 F.3d 655, 656-57 (2d Cir. 1994) (applying provisions of Rule 4(a) to a motion to file a late notice of appeal in a federal habeas corpus proceeding). 3 Respondent was initially given the opportunity to respond to the instant motion on or before July 12, 2024.
cited Cited as authority (rule) Franklin v. Chapman
E.D. Mich. · 2022 · confidence medium
See e.g., United States v. Arawole, 16 F. App’x 193, 193 (4th Cir. 2001); Martinez v. Hoke, 38 F.3d 655, 656-57 (2nd Cir. 1994).
cited Cited as authority (rule) Garraway v. Griffin
W.D.N.Y. · 2020 · confidence medium
Martinez v. Hoke, 38 F.3d 655, 656 (2d Cir. 1994); Mulligan v. Griffin, No. 6:15-CV-06502- MAT, 2017 WL 491683 , at *1 (W.D.N.Y.
cited Cited as authority (rule) Tafari v. McGinnis
2d Cir. · 2009 · confidence medium
See Bowles v. Russell, 551 U.S. 205 , 127 S.Ct. 2360, 2367 , 168 L.Ed.2d 96 (2007); Martinez v. Hoke, 38 F.3d 655, 656 (2d Cir.1994).
cited Cited as authority (rule) Tafari v. McGinnis
2d Cir. · 2009 · confidence medium
See Bowles v. Russell, 551 U.S. 205 , 127 S.Ct. 2360, 2367 , 168 L.Ed.2d 96 (2007); Martinez v. Hoke, 38 F.3d 655, 656 (2d Cir.1994).
discussed Cited as authority (rule) Jackson v. Broome County Correctional Facility
2d Cir. · 2003 · confidence medium
Compliance with the time requirements for filing an appeal is “mandatory and jurisdictional.” Browder v. Director, Dep’t of Corrections of Illinois, 434 U.S. 257, 264 , 98 S.Ct. 556 , 54 L.Ed.2d 521 (1978); Martinez v. Hoke, 38 F.3d 655, 656 (2d Cir.1994); see also 28 U.S.C. § 2107 .
discussed Cited as authority (rule) Cordon v. Greiner
S.D.N.Y. · 2003 · signal: cf. · confidence medium
Mar. 20, 2003) (denying the petitioner’s Rule 4(a)(6) motion where the record indicated that the petitioner had received notice of the entry of a separate judgment in a habeas corpus proceeding); cf. Martinez v. Hoke, 38 F.3d 655, 656-657 (2d Cir.1994) (measuring a petitioner’s compliance with Rule 4(a)(6) from the date upon which he received notice of the entry of the district court’s “judgment” denying his habeas petition).
cited Cited as authority (rule) Bank of India v. Trendi Sportswear, Inc.
2d Cir. · 2000 · confidence medium
See Fed.R.App.P. 4(a)(1); see also Browder v. Director, Dept. of Corrections, 434 U.S. 257, 264 , 98 S.Ct. 556 , 54 L.Ed.2d 521 (1978); Martinez v. Hoke, 38 F.3d 655, 656 (2d Cir.1994). .
discussed Cited as authority (rule) Bank of India v. Trendi Sportswear, Inc, Trendi Sportswear, Inc., Third-Party-Plaintiff-Appellant v. Indu Craft, Inc., Third-Party-Defendant, Indu Craft, Inc., Fourth-Party-Plaintiff-Appellant v. Bank of Baroda, Fourth-Party-Defendant-Appellee
2d Cir. · 2000 · confidence medium
App. P. 4(a)(1); see also Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978); Martinez v. Hoke, 38 F.3d 655, 656 (2d Cir. 1994). 10 The current rule relating to supplemental jurisdiction, 28 U.S.C. § 1367 , is inapplicable because it only applies to actions commenced "on or after the date of enactment of this Act" which was December 1, 1990.
discussed Cited as authority (rule) Bourgal v. Robco Contracting Enterprises, Ltd.
E.D.N.Y · 1998 · confidence medium
The Court of Appeals has concluded that “a motion for reopening of the time for appeal may be granted only if it was filed within 180 days of entry of the judgment ... or within 7 days of receipt of such notice, whichever is earlier.” Martinez v. Hoke, 38 F.3d 655, 656 (2d Cir.l994)(quoting Rule 4[a][6] Xemphasis added).
discussed Cited as authority (rule) Cote v. Chase
D.N.H. · 1996 · confidence medium
Hoke, 38 F.3d 655, 656 (2nd Cir. 1994) ("[E]ven where a party did not receive notice of entry of the judgment within 21 days of entry, the district court lacks jurisdiction under Rule 4(a)(6) to reopen the time for appeal if the motion for such a reopening is made more than seven days after the movant received notice of entry [of the judgment]."); Marcangelo v .
discussed Cited as authority (rule) Cote v. Chase
D.N.H. · 1996 · confidence medium
Martinez v. Hoke, 38 F.3d 655, 656 (2nd Cir.1994) (“[E]ven where a party did not receive notice of entry of the judgment within 21 days of entry, the district court lacks jurisdiction under Rule 4(a)(6) to reopen the time for appeal if the motion for such a reopening is made more than seven days after the movant received notice of entry [of the judgment].”); Marcangelo v. Boardwalk Regency, 47 F.3d 88, 91 (3rd Cir.1995) (“The time limits provided by Fed.R.App.P. 4(a)(6) and 28 U.S.C. § 2107 are mandatory and jurisdictional, and the courts are required to dismiss untimely appeals sua spo…
discussed Cited as authority (rule) Federal Home Loan Mortg. Corp. v. Toles
2d Cir. · 1995 · confidence medium
P. 4(a)(1); Martinez v. Hoke, 38 F.3d 655, 656 (2d Cir.1994) (thirty-day rule is "mandatory and jurisdictional") (citations omitted). 11 Even if the appeal were timely, we could not hear the appellants claims.
examined Cited "see, e.g." Morrison v. Wolcott (3×)
N.D.N.Y. · 2023 · signal: see also · confidence medium
App. P. 5(a)(2); 4(a)(1)(A); see also Martinez v. Hoke, 38 F.3d 655, 656 (2d Cir. 1994).
discussed Cited "see, e.g." Brown v. Eli Lilly and Co.
2d Cir. · 2011 · signal: see also · confidence medium
We have held that a Court of Appeals “has no power whatever to extend the deadline for filing [a] notice of appeal.” Matarese v. LeFevre, 801 F.2d 98, 105 (2d Cir.1986); see also Martinez v. Hoke, 38 F.3d 655, 656 (2d Cir.1994).
discussed Cited "see, e.g." Toby Cohen v. Empire Blue Cross and Blue Shield
2d Cir. · 1998 · signal: see also · confidence medium
Thus, in cases under Rule 4(a)(1) where the time for filing a notice of appeal is 30 days, “the district court may, on a showing of good cause or excusable neglect, extend the 30-day period for up to 30 days from the original deadline or until 10 days after the date of entry of the order granting the motion, whichever is later, but may not extend it further.” Endicott Johnson, 116 F.3d at 56 ; see also Martinez v. Hoke, 38 F.3d 655, 656 (2d Cir.1994) (per curiam).
discussed Cited "see, e.g." Endicott Johnson Corporation, Plaintiff-Appellee-Cross-Appellant v. Liberty Mutual Insurance Company, Defendant-Appellant-Cross-Appellee (2×)
2d Cir. · 1997 · signal: see, e.g. · confidence medium
See, e.g., Martinez v. Hoke, 38 F.3d 655, 656 (2d Cir.1994) (per curiam); Matarese v. LeFevre, 801 F.2d at 104-05 ; Moore v. Nelson, 611 F.2d 434 , 436 n. 4 (2d Cir.1979); In re Orbitec Corp., 520 F.2d 358, 361 (2d Cir.1975).
Retrieving the full opinion text from the archive…
Hector A. MARTINEZ, Petitioner-Appellant,
v.
Robert HOKE, Superintendent, Eastern Correctional Facility, Respondent-Appellee
94-2179.
Court of Appeals for the Second Circuit.
Oct 20, 1994.
38 F.3d 655
Hector A. Martinez, pro se., Nancy F. Talcott, Brooklyn, NY, for respondent-appellee.
Oakes, Kearse, Miner.
Cited by 18 opinions  |  Published
PER CURIAM:

Petitioner Hector A. Martinez has moved for a certificate of probable cause to permit him to appeal from a judgment entered in the United States District Court for the Eastern District of New York, I. Leo Glas-ser, Judge, denying his petition for a writ of habeas corpus, and has moved for the appointment of counsel in connection with such an appeal. For the reasons that follow, we sua sponte dismiss the appeal for lack of appellate jurisdiction, and we therefore deny the motions as moot.

Under Fed.R.App.P. 4(a)(1), a notice of appeal in a civil case to which the United States is not a party must be filed within 30 days of entry of the judgment from which appeal is taken. This requirement is “mandatory and jurisdictional.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (per curiam) (internal quotes omitted); Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978). A court of appeals has no authority to extend the time for filing a notice of appeal. See, e.g., Fed.RApp.P. 26(b); Matarese v. LeFevre, 801 F.2d 98, 105 (2d Cir.1986), cert. denied, 480 U.S. 908, 107 S.Ct. 1353, 94 L.Ed.2d 523 (1987).

The district court has the power, upon a showing of excusable neglect, to extend the time for filing a notice of appeal if the motion for such an extension is filed not later than 30 days after the expiration of the time provided by Rule 4(a)(1). See Fed.R.App.P. 4(a)(5); Campos v. LeFevre, 825 F.2d 671, 672-76 (2d Cir.1987), cert. denied, 484 U.S. 1014, 108 S.Ct. 718, 98 L.Ed.2d 667 (1988). The district court lacks jurisdiction under Rule 4(a)(5) to grant a motion that is filed beyond the 30-day extension period. See, e.g., Melton v. Frank, 891 F.2d 1054, 1056 (2d Cir.1989) (“If ... the motion to extend is not filed within subdivision (a)(5)’s grace period, the district court is without power to grant an extension.”).

In addition to the power granted in Rule 4(a)(5), if the district court finds that a party entitled to receive notice of the entry of a judgment did not receive such notice from the clerk of the court or from any other party within 21 days of entry of the judgment, the court may, upon motion and in the absence of prejudice to any other party, “reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.” Fed. R.App.P. 4(a)(6). However, such a motion for reopening of the time for appeal may be granted only if it was “filed within 180 days of entry of the judgment ... or within 7 days of receipt of such notice, whichever is earlier.” Id. (emphasis added). Thus, even where a party did not receive notice of entry of the judgment within 21 days of entry, the district court lacks jurisdiction under Rule 4(a)(6) to reopen the time for appeal if the motion for such a reopening is made more than seven days after the movant received notice of entry.

In the present case, the district court’s judgment denying Martinez’s habeas petition was entered on January 12, 1994. Ordinarily, his time to appeal would therefore have expired on February 11. However, Martinez asserts that he did not receive notice of entry of the judgment until February 14, 1994. Had he moved for an extension of[*657] time promptly thereafter, such a motion might properly have been granted. However, Martinez did not mail his motion for an extension of his time to appeal, which was accompanied by his notice of appeal, until March 27. Although this motion was in fact granted by the district court, the court had no jurisdiction to grant it because it was filed more than 30 days after the expiration of Martinez’s time to appeal and more than 7 days after the date on which Martinez acknowledges he received notice of entry.

Since the district court lacked jurisdiction to extend Martinez’s time to appeal in this case, and since this Court has no authority to extend the time for filing a notice of appeal, we dismiss the present appeal for lack of appellate jurisdiction.

The motions for certificate of probable cause and for the assignment of counsel are denied as moot.