Armstrong v. Ahitow
| Citation | 36 F.3d 574 |
| Decision Date | 20 September 1994 |
| Docket Number | No. 94-2263,94-2263 |
| Parties | Derrick ARMSTRONG, Petitioner-Appellant, v. Rodney J. AHITOW, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Derrick Armstrong, pro se.
Martha E. Gillis, Office of the Atty. Gen., Criminal Appeals Div., Chicago, IL, for respondent-appellee.
Before CUMMINGS, KANNE, and ROVNER, Circuit Judges.
Derrick Armstrong filed a petition for a writ of habeas corpus on December 1, 1992 pursuant to 28 U.S.C. Sec. 2254 seeking to challenge an eighteen year sentence imposed after he pleaded guilty to two counts of residential burglary. On March 24, 1993, the district court entered a memorandum opinion and order denying the writ. On May 2, 1994, Armstrong filed a motion for appointment of counsel and to take judicial notice that he was ineligible for post-conviction relief in Illinois, in response to which the district court issued a minute order that denied the motions as moot "since this case was terminated on 03/23/94 [sic]." On May 23, 1994, Armstrong filed a document entitled "Late Notice of Appeal." Because the notice of appeal was filed over a year after the denial of Armstrong's petition, we ordered Armstrong to submit a memorandum addressing the timeliness of the appeal. Our order also indicated that the district court had not extended the appeal period and that this court lacked the power to do so. This apparently prompted Armstrong to file a motion before the district court to extend the appeal time. Remarkably, the district court granted the motion, although Fed.R.App.P. 4(a)(5) provides that a motion to extend the time for appeal in a civil case must be made within thirty days of the date that the appeal time expires. See Harrison v. Dean Witter Reynolds, Inc., 974 F.2d 873, 886 (7th Cir.1992); Labuguen v. Carlin, 792 F.2d 708, 710 (7th Cir.1986); United States ex rel. Leonard v. O'Leary, 788 F.2d 1238, 1239 (7th Cir.1986). We now dismiss the appeal for lack of jurisdiction on the ground that it is premature.
The district court's March 24, 1993 memorandum opinion was not accompanied by the entry of a Rule 58 judgment. Habeas petitions are civil proceedings to which the rules of civil procedure apply. See Fed.R.Civ.P. 81(a)(2) (); Baity v. Ciccone, 507 F.2d 717, 718 (8th Cir.1974); accord, Sassoon v. United States, 549 F.2d 983, 984 (5th Cir.1977). As we have recently discussed, the final judgment rule embodied in Rule 58, among other purposes, operates to protect the opportunity to appeal. Brill v. McDonald's Corp., 28 F.3d 633, 634-35 (7th Cir.1994) (collecting cases). As this appeal would otherwise be untimely, the final judgment rule "must be mechanically applied in order to avoid ... uncertainties as to the date on which a judgment is entered." United States v. Indrelunas, 411 U.S. 216, 222, 93 S.Ct. 1562, 1565, 36 L.Ed.2d 202 (1973); see also Sassoon v. United States, 549 F.2d at 984-985 (); Baity v. Ciccone, 507 F.2d at 718 (). Thus, although it is clear that the district court intended its March 24, 1993 order to end this case, the requirement of a Rule 58 judgment cannot be waived here, see Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (per curiam), as to do so would defeat our appellate jurisdiction. United States v. Indrelunas, 411 U.S. at 221-222, 93 S.Ct. at 1564-1565.
As one member of this panel recently observed, "a district court has only limited time to devote to each of its hundreds of cases[.]" Otis v. City of Chicago, 29 F.3d 1159, 1172 (7th Cir.1...
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Butler v. U.S.
...of judgment was not entered as required by Federal Rule of Civil Procedure 58. Thus, the government asserts, under Armstrong v. Ahitow, 36 F.3d 574 (7th Cir.1994), we lack jurisdiction over this appeal. The government misunderstands the import of the separate document rule of Rule 58, which......
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