U.S. v. Fiorelli

• Citation: 337 F.3d 282
• Decision Date: 09 July 2003
• Docket Number: No. 01-2951.,01-2951.
• Parties: UNITED STATES of America v. Joseph FIORELLI, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

337 F.3d 282

UNITED STATES of America v. Joseph FIORELLI, Appellant.

No. 01-2951.

United States Court of Appeals, Third Circuit.

Argued April 1, 2003.

Filed July 9, 2003.

COPYRIGHT MATERIAL OMITTED

Salvatore C. Adamo, (Argued), Philadelphia, PA, for Appellant.

Ronald G. Cole, (Argued), Office of the United States Attorney, Philadelphia, PA, for Appellee.

Before McKEE, SMITH and COWEN, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

Federal prisoner Joseph Fiorelli filed a pro se motion under 28 U.S.C. § 2255 to set aside his conviction on the grounds of ineffective assistance of counsel. The District Court denied the motion without conducting a hearing on Fiorelli's claim. Fiorelli responded with a motion to reconsider, which the District Court also denied. This appeal followed.

We consider whether Fiorelli filed his notice of appeal within the time limits of Federal Rule of Appellate Procedure 4(a), and hence, whether we have jurisdiction to consider this case. We conclude that in computing the time for an appeal, any delay by the prison officials in transmitting the District Court's order denying Fiorelli's § 2255 motion must be subtracted from the time for filing a motion for reconsideration. Prison delay, if established, would toll the ten-day limitation for filing a motion under Federal Rule of Civil Procedure 59, and make Fiorelli's appeal timely. The present record does not contain the relevant dates of the prison's receipt and delivery of the District Court's order denying Fiorelli's § 2255 motion. We will therefore vacate the District Court's dismissal, and remand for the appropriate factual findings.

BACKGROUND

On December 6, 1994, Fiorelli was sentenced to 121 months imprisonment following his convictions for racketeering, extortion, embezzlement, and obstruction of justice. Some six years later, on January 26, 2000, Fiorelli filed a motion to set aside his conviction pursuant to 28 U.S.C. § 2255 alleging ineffective assistance of counsel during his trial. Fiorelli's motion alleged that his counsel failed to disclose a plea agreement offered by the government that would have resulted in a 60-month term of imprisonment. Fiorelli allegedly learned of this plea offer during a conversation with Thomas Carroll, an attorney and "family friend." Carroll did not represent Fiorelli in his criminal trial, and Fiorelli alleged only that Carroll "was aware" of a plea offer.

On April 9, 2001, the District Court denied Fiorelli's § 2255 motion. On about April 30, 2001, Fiorelli, again representing himself, filed a motion for reconsideration purportedly under Federal Rule of Civil Procedure 60(b). The District Court denied the motion for reconsideration in a second opinion entered on May 18, 2001. Fiorelli then filed a notice of appeal on July 17, 2001. We issued a Certificate of Appealability limited to the issue of ineffective assistance of counsel.

DISCUSSION

Determining whether we have jurisdiction to consider this appeal requires us to address several novel questions. First, whether the Federal Rules of Civil Procedure are applicable to § 2255 motions. Second, when a district court's order is deemed "entered" under the federal rules. Third, whether our decisions regarding the "mailbox rule" in prison suits apply to motions for reconsideration. This analysis is necessitated by the long delay in Fiorelli's notice of appeal. The District Court denied Fiorelli's § 2255 motion on April 9, 2001, and under Federal Rule of Appellate Procedure 4(a)(1)(B),¹ Fiorelli had sixty days to file a notice of appeal. As Fiorelli's appeal was not filed until July 17, 2001, his appeal is untimely unless the sixty-day limitation is tolled.

1.

We first consider the applicability of the Federal Rules of Civil Procedure to this § 2255 motion. Section 2255 permits federal prisoners to challenge their sentence in a proceeding before the sentencing court, rather than the district court in the jurisdiction where the prisoner is confined. Kaufman v. United States, 394 U.S. 217, 222, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969) ("[T]he legislation was intended simply to provide in the sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in the district the prisoner was confined." (quoting Hill v. United States, 368 U.S. 424, 427, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962))); United States v. Nahodil, 36 F.3d 323, 328-29 (3d Cir.1994). Historically, a federal prisoner's motion to vacate, set aside, or correct a sentence, under § 2255 was considered an independent civil suit, and not a proceeding in the original criminal prosecution. Heflin v. United States, 358 U.S. 415, 418 n. 7, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); United States v. Hayman, 342 U.S. 205, 209 n. 4, 72 S.Ct. 263, 96 L.Ed. 232 (1952); Neely v. United States, 546 F.2d 1059, 1065 (3d Cir.1976); Washington v. United States, 450 F.2d 945, 946 (3d Cir.1971). Congress and the Supreme Court altered this tradition in 1976 with the adoption of the Rules Governing Section 2255 Proceedings for the United States District Courts (the "Section 2255 Rules"). Pub.L. 94-426, § 1, 90 Stat. 1334 (1976). The Advisory Committee Notes to the Section 2255 Rules state that contrary to the Supreme Court's earlier decisions, "a motion under § 2255 is a further step in the movant's criminal case and not a separate civil action...." Section 2255 Rule 1 advisory committee notes (discussing S.Rep. No. 1526, at 2 (1948)).

The Section 2255 Rules do not automatically make all of the Federal Rules of Procedure applicable to § 2255 motions, and the district courts are instructed to apply either the Federal Rules of Civil Procedure or Criminal Procedure if no other procedure is specifically prescribed. Section 2255 Rule 12. Rule 11, however, specifically prescribes that "[t]he time for appeal from an order entered on a motion for relief made pursuant to these rules is as provided in Rule 4(a) of the Federal Rules of Appellate Procedure." Thus, while a § 2255 motion is deemed a further step in the movant's criminal case, it is also considered a civil remedy for purposes of appellate jurisdiction.

Confusion arises from the interplay of Section 2255 Rules 11 and 12, because neither explains whether the Federal Rules of Civil Procedure related to Appellate Rule 4(a) are also applicable. See, e.g., Fed.R.App.P. 4(a)(4)(A) (measuring the time to file an appeal from the entry of the order disposing of motions under Federal Rules of Civil Procedure 50(b), 52(b), 54, 59 and 60). In this case, we are concerned with the requirement under Civil Rule 58 that judgments be set forth on a separate document and entered in the docket of the district clerk, and the time limitations accompanying motions for reconsideration under Civil Rules 59 and 60.

The majority of the circuit courts considering the "separate document" requirement of Civil Rule 58(a) have concluded that the Rule applies to § 2255 motions. United States v. Johnson, 254 F.3d 279, 283-84 (D.C.Cir.2001) (collecting cases); and see Jenkins v. United States, 325 F.2d 942, 944-45 (3d Cir.1963) (discussing practice prior to promulgation of Civil Rule 58, and holding that "some directive reflecting the final judgment" is always required for filing an appeal); but see Williams v. United States, 984 F.2d 28, 30 (2d Cir.1993) (holding no judgment is required upon an order denying a § 2255 motion). In addition, both of the circuit decisions to consider the issue have applied Civil Rules 59 and 60 to § 2255 motions. United States v. Martin, 226 F.3d 1042, 1048-49 (9th Cir.2000); United States v. Clark, 984 F.2d 31, 34 (2d Cir.1993).

As noted by the Second and Ninth Circuits, motions for reconsideration may be filed in criminal cases. Martin, 226 F.3d at 1047 n. 7; Clark, 984 F.2d at 33. Extending the time constraints imposed by Civil Rules 59(e) and 60(b) to motions in § 2255 proceedings creates consistency with petitions for writs of habeas corpus by state prisoners under 28 U.S.C. § 2254. Browder v. Dir., Dep't of Corrs., 434 U.S. 257, 270-71, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (applying Civil Rule 59 to habeas proceeding); Section 2255 Rule 11 advisory committee notes ("[B]ecause appellate rule 4(a) is applicable in habeas cases, it likewise governs in § 2255 cases even though they are criminal in nature."). Using the time provisions of both Civil Rules also synthesizes the directive of Section 2255 Rule 11 to calculate the time for an appeal pursuant to Appellant Rule 4(a), with the exception of Appellate Procedure 4(a)(4) providing that motions under Civil Rules 59 and 60 may toll the period for filing a notice of appeal.

For these same reasons, we also hold that the "separate document" requirement of Civil Rule 58(a) and the entry requirement of 58(b) apply to § 2255 motions. In civil suits, the period for filing a notice of appeal under Appellate Rule 4(a) commences with the entry of a judgment set forth on a separate document as required by Civil Rule 58(a). Gregson & Assocs. Architects v. Gov't of the Virgin Islands, 675 F.2d 589, 591-93 (3d Cir.1982). And as explained in detail below, "entry" means the entry of the judgment in the civil docket maintained by the clerk's office. Thus, the direction in Section 2255 Rule 11 to apply Appellate Rule 4(a) includes these related provisions of Civil Rule 58 that explain how the time limitations for filing a notice of appeal are calculated. Johnson, 254 F.3d at 283.

2.

Having concluded that the requirements of Civil Rule 58 apply to § 2255 proceedings, we take the opportunity to explain the "somewhat arcane" matter of determining the entry date of district court order under the Rule 58(b). Houston v. Greiner, 174 F.3d 287, 288 (2d Cir.1999). The confusion arises from the numerous dates attached to the District Court's order denying Fiorelli's motion for reconsideration. The District Court dated its order May 16, 2001, and the Clerk's Office stamped...