Carrascosa v. McGuire

• Decision Date: 20 March 2008
• Docket Number: No. 07-4130.,No. 07-1748.,07-1748.,07-4130.
• Citation: 520 F.3d 249
• Parties: Maria José CARRASCOSA, Appellant v. Leo P. McGUIRE, Sheriff, Bergen County Peter W. Innes; Prosecutor John L. Molinelli (Intervenors in D.C.).
• Court: U.S. Court of Appeals — Third Circuit

520 F.3d 249

Maria José CARRASCOSA, Appellant v. Leo P. McGUIRE, Sheriff, Bergen County Peter W. Innes; Prosecutor John L. Molinelli (Intervenors in D.C.).

No. 07-1748.

No. 07-4130.

United States Court of Appeals, Third Circuit.

Argued January 3, 2008.

Filed March 20, 2008.

Clifford E. Lazzaro, Heather A. Fierro [Argued], Lazzaro & Associates, Newark, NJ, for Appellant.

Danielle R. Pasquale [Argued], Office of Bergen County Counsel, Hackensack, NJ, for Leo McGuire.

Peter F. Van Aulen [Argued], Saddle Brook, NJ, for Peter W. Innes.

Annmarie Cozzi, Carol V. Catuogno [Argued], Office of County Prosecutor, Hackensack, NJ, for John L. Molinelli.

Jerome J. Shestack [Argued], Wolf, Block, Schorr & Solis-Cohen, Philadelphia, PA, Alan S. Pralgever, Wolf, Block, Schorr & Solis-Cohen, Roseland, NJ, for Amicus Curiae Gov't Valencia Spain.

Before: FUENTES, JORDAN, Circuit Judges and O'NEILL^*, District Judge.

OPINION OF THE COURT

JORDAN, Circuit Judge.

Maria José Carrascosa appeals from the District Court's denial and dismissal with prejudice of her petition for a writ of habeas corpus, which sought to end her detention in the Bergen County, New Jersey jail for violating a civil contempt order issued by the Superior Court of New Jersey. At the heart of this sad case, which raises questions of international and federal law under the Hague Convention's Civil Aspects of International Child Abduction, T.I.A.S. No. 11670 (Nov. 7, 1988) (the "Hague Convention"), is a custody battle over a young girl who has not seen either of her parents in years. Because we agree with the skillful analysis of the District Court, we must affirm.

I. Jurisdiction and Scope of Review

Before reaching the merits of Carrascosa's appeal, we first address two threshold issues. The first involves whether the appeal should be dismissed as time-barred, pursuant to 28 U.S.C. § 2107(a) and Federal Rule of Appellate Procedure 4. Bowles v. Russell, ___ U.S. ___, 127 S.Ct. 2360, 2366, 168 L.Ed.2d 96 (2007); see also In re Flat Glass Antitrust Litigation, 288 F.3d 83, 88 n. 5 (3d Cir.2002) ("[W]e have an `independent responsibility to examine our own jurisdiction sua sponte.'") (citation omitted). The second involves, the effect, if any, that Carrascosa's failure to exhaust her state remedies prior to pursuing habeas relief has on our scope of our review.

1. Jurisdictional defect

The District Court denied Carrascosa's petition for a writ of habeas corpus on February 8, 2007 and entered a final order on February 11, 2007. On February 23, 2007, Carrascosa filed a Motion for Reconsideration. She then timely filed a Notice of Appeal in the District Court on March 12, 2007 which stated:

Notice is hereby given that Petitioner Maria José Carrascosa, through her undersigned attorneys, hereby appeals to the United States Court of Appeals for the Third Circuit, pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253, from a final Order entered in this action on February 11, 2007.

Notice is further given that such Order entered on February 11, 2007 is currently subject to a motion for reconsideration made pursuant to District of New Jersey Local Rule 7.1(i). Petitioner shall withdraw this Notice of Appeal, or file an amended notice of appeal, as may become necessary.

(11.8.07 Ltr. Br.¹, Ex. B.) The appeal was assigned Docket No. 07-1748. On March 20, 2007, this Court stayed the appeal and remanded to the District Court for the sole purpose of either issuing a certificate of appealability or stating reasons why a certificate of appealability should not issue. The District Court issued a certificate of appealability on March 27, 2007.

Carrascosa's Motion for Reconsideration was denied on May 15, 2007. She then filed what she styled an "Amended Notice of Appeal" in the District Court on October 23, 2007, which stated:

Notice is hereby given that, MARIA JOSé CARRASCOSA, Plaintiff in the above case, hereby amends the Notice of Appeal to the United States Court of Appeals for the Third Circuit, timely filed on March 12, 2007, from the Final Order entered in this action on February 11, 2007, to include the Final Order on Reconsideration entered in this action on May 15, 2007.

(11.8.07 Ltr. Br., Ex. C.) That second Notice of Appeal was assigned a new docket number, 07-4130. On November 1, 2007, the Office of the Clerk of this Court notified Carrascosa's counsel that her appeal in Docket No. 07-4130 may be subject to possible dismissal for a jurisdictional defect because it was not filed within thirty days of the District Court's May 15, 2007 denial of the Motion for Reconsideration, as required by Federal Rule of Appellate Procedure 4(a)(1)(A). In the meantime, the Office of the Clerk consolidated Docket Nos. 07-1748 and 07-4130 for purposes of appeal, but informed counsel that only the Court could determine matters of jurisdiction.

Carrascosa's counsel submitted a letter brief on November 8, 2007 in opposition to dismissal of her appeal in Docket No. 07-4130. The letter brief explains that, on April 23, 2007, her previous attorney had filed a motion to be relieved as counsel, and that Carrascosa entered her own appearance, pro se, the same day. Another attorney argued her motion for reconsideration on May 15, 2007, even though the notice of substitution of counsel was not filed until May 18, 2007. Carrascosa's current counsel was retained on July 26, 2007.

Counsel candidly admits that,

[a]t the time this firm was retained, the time to file an amended or a new Notice of Appeal of the denial of the Motion for Reconsideration under the Federal Rule of Appellate Procedure 4, heard on May 15, 2007, had expired. Additionally, the time to file a motion requesting an extension of time to file an untimely Notice of Appeal under Federal Rule of Appellate Procedure 4(a)(1) and 4(a)(5) had also expired.

(11.8.07 Ltr. Br. at 6.) Carrascosa argues, however, that her first Notice of Appeal, though filed prematurely on March 12, 2007, "specifically referenced the pending reconsideration motion," thereby signaling her intention "to seek an appeal of the denial of the Motion for Reconsideration." (11.8.07 Ltr. Br. at 7.) Carrascosa also submits that the Amended Notice of Appeal was filed only "for the purpose of a complete procedural record" because she "filed all the necessary documents for the appeal not [filed by previous counsel]" (11.8.07 Ltr. Br. at 6), and that this Court should not have assigned the Amended Notice of Appeal a new docket number, as it is nothing more than an additional piece of Carrascosa's original appeal under Docket No. 07-1748. We disagree.

Carrascosa's first Notice of Appeal referenced her then-pending Motion for Reconsideration and recognized the need to file a further Notice of Appeal once the District Court decided that motion. Obviously, Carrascosa was aware of the statutory requirement to timely file a new or amended notice of appeal after the District Court denied her Motion for Reconsideration on May 15, 2007. As we explained in United States v. McGlory, Federal Rule of Appellate Procedure 4(a) provides that a notice of appeal filed before the disposition of one of the motions specified in Rule 4(a)(4)(A)², including a [motion for reconsideration³], will become effective upon entry of the order disposing of the motion. Because McGlory filed his notice of appeal from the court's January 3, 1997 order while the [motion for reconsideration] was pending, the notice of appeal became effective on September 22, 1998 — the date that the District Court entered its order denying that motion. See Fed. R.App. P. 4(a)(4)(B)(i)⁴. However, in order to contest the denial of a [motion for reconsideration], a new or amended notice of appeal must be filed. Thus, when the District Court denied McGlory's [motion for reconsideration] on September 22, 1998, McGlory could proceed with his appeal of the January 3, 1997 order ... without further filing, but if he wanted the appeal to encompass any challenge to the order of September 22, 1998, he was required to file an amended notice of appeal. See Fed. R.App. P. 4(a)(4)(B)(ii)⁵....

202 F.3d 664, 668 (3d Cir.2000) (emphasis added) (internal citations omitted). In this case, Carrascosa's Notice of Appeal became effective on May 15, 2007 (Pa.53)⁶, the date that the District Court entered its order denying her Motion for Reconsideration (Pa.28). As we made clear in McGlory, if Carrascosa wanted her appeal "to encompass any challenge to" the District Court's denial of that motion, she was required to file a new or amended notice of appeal within the thirty day time limit imposed by the Federal Rules. Id.; Fed. R.App. P. 4(a)(4)(B)(ii) and 4(a)(1)(A).

Recently, in Bowles v. Russell, the Supreme Court emphasized that "the timely filing of a notice of appeal in a civil case is a jurisdictional requirement." 127 S.Ct. at 2366. That holding is rooted in the fact that the time limit for filing a notice of appeal is mandated by statute.⁷ Id. at 2364. It is undisputed that Carrascosa's October 23, 2007 Amended Notice of Appeal, which sought review of the District Court's ruling on her Motion for Reconsideration, was filed far beyond the thirty day limit imposed by 28 U.S.C. § 2107 and embodied in Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure. Accordingly, we do not have jurisdiction to review any arguments raised for the first time in Carrascosa's Motion for Reconsideration.⁸ We must therefore limit our review to the merits of the District Court's February 8, 2007 denial of her habeas petition.⁹ Accord McGlory, 202 F.3d at 668 ("Patently, McGlory's original notice of appeal ... could not confer jurisdiction over the District Court's ... order denying reconsideration....").

2. Exhaustion

The issue of exhaustion is relevant to our scope of review because, if a petitioner's claim is exhausted and has been adjudicated on the merits by a State court, her petition may not be granted unless the State court's...