Bowles v. Russell

Decision Date28 December 2005
Docket NumberNo. 04-3262.,04-3262.
PartiesKeith BOWLES, Petitioner-Appellant, v. Harry RUSSELL, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

ON BRIEF: Paul Mancino, Jr., Mancino, Mancino & Mancino, Cleveland, Ohio, for Appellant. Bruce D. Horrigan, Corrections Litigation Section, Cleveland, Ohio, for Appellee.

Before: BOGGS, Chief Judge; GIBBONS, Circuit Judge; and ROSE, District Judge.*

OPINION

BOGGS, Chief Judge.

This is a case about missed deadlines. At times, they go unnoticed, but sometimes the lapse is fatal. This case presents one of the fatal variety. Petitioner Keith Bowles failed to receive timely notice of the district court's ruling that triggered his appeal period. When he did receive notice, he correctly sought relief under Fed. R.App. P. 4(a). When the district court granted his requested relief but mistakenly offered an erroneous deadline, Bowles chose it and failed to comply with the deadline of February 24, 2004. This court on motion declined to dismiss his appeal. Today, we correct that error and hold that the fourteen-day period of Rule 4(a)(6) of the Federal Rules of Appellate Procedure is not susceptible to extension through mistake, courtesy, or grace.

I

On August 22, 1998, Keith Bowles, Richard Hayden, Damon Anderson, and Jamal Russell drove from Cleveland to Fairport Harbor, Ohio to see a performance at a bar called Hellbusters. The group left the bar early in the morning and drove to nearby Painesville to attend an after-hours party at the Argonne Arms apartment complex. On their way to the party, they passed a bar called Nino's, outside of which they saw Hayden's cousin, Marcus Moore, in some physical distress. Later, after rendezvousing with Moore, they learned from him that he had been jumped and beaten by a group of men from Painesville including Antonio Rymmer.

Bowles, Hayden, Anderson, and Russell agreed to search for Rymmer at the Argonne Arms and extract their revenge. When they found Rymmer, and he was armed, the group decided to delay their plan. Soon after, the group happened upon the victim, Ollie Gipson. Gipson appeared as if he might be armed and, when it became clear that he was not, Bowles, Hayden, and Anderson beat him. The final, deadly, blows were administered by Hayden after Bowles had returned to the car. Gipson died the next day as a result of his injuries. Bowles was indicted on September 4, 1998, for his part in the beating on a charge of felonious assault in violation of Ohio Revised Code § 2903.11, and murder in violation of § 2903.02(B).

In the trial court, Bowles moved for dismissal, arguing that Ohio's Revised Code had created two categories of murder in contravention of the Fourteenth Amendment. See U.S. Const. amend. XIV. The court denied the motion and held that the Supreme Court has never held unconstitutional the individual states' ability to enact felony-murder statutes. See Lockett v. Ohio, 438 U.S. 586, 602, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (holding "[t]hat states have authority to make aiders and abettors equally responsible, as a matter of law, with principals, or to enact felony-murder statutes is beyond constitutional challenge"). On March 3, 1999, an Ohio jury entered a verdict of guilty on a single count of murder and sentenced Bowles to serve an indefinite term of imprisonment of fifteen years to life in an Ohio correctional facility.

Bowles appealed his case to both the Court of Appeals and Supreme Court of Ohio. Both denied him relief. See Ohio v. Bowles, No. 99-L-075, 2001 WL 502042 (Ohio Ct.App. May 11, 2001). The one-year statute of limitations for federal habeas began running when the ninety-day certiorari period ended. See Abela v. Martin, 348 F.3d 164, 172 (6th Cir.2003); 28 U.S.C. § 2244(d)(1) (allowing a one-year statute of limitations on filing from the day a state conviction becomes final).

On September 5, 2002, Bowles filed his federal petition for a writ of habeas corpus. The case was referred to a magistrate judge, who, on May 23, 2003, issued a report and recommendation that the petition be denied. Bowles filed a lengthy objection to the magistrate judge's report, but United States District Judge Nugent, on July 10, 2003, adopted the findings in a short memorandum opinion, additionally denying the petitioner a certificate of appealability pursuant to 28 U.S.C. § 2253(c). The order was docketed on July 28, 2003.

On August 6, 2003, Bowles moved for a new trial under Rule 59 or to amend the judgment under Rule 52, objecting to the adoption of the magistrate judge's report without, he argued, de novo review of the findings. See Fed.R.Civ.P. 52, 59. The motion was denied on September 9, 2003, the date of the final, appealable order in this case. Accordingly, a timely notice of appeal would have been entered, at the latest, by October 9. See Fed. R.App. P. 4(a)(1)(A) (giving thirty days to appeal a final judgment). However, instead of filing his notice, Bowles, remained silent for ninety-four days. All possible avenues of appeal closed during this period, save one. Only Fed. R.App. P. 4(a)(6) allows a party to timely file a notice of appeal ninety-four days after judgment. See Fed. R.App. P. 4(a)(1) (requiring a notice of appeal to be filed within thirty days of judgment); Fed. R.App. P. 4(a)(4) (granting thirty days for appeal after the disposal of some motions including those under Fed.R.Civ.P. 59); Fed R.App. P. 4(a)(5) (extending time an additional thirty days for "excusable neglect or good cause").

On December 12, 2003, Bowles moved to reopen the appeal period pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure. Bowles claimed that the order of September 9, in contravention of the Rules, was never served by the court and that he was unaware of the order until December 3, 2003, when he obtained a docket sheet. See Fed.R.Civ.P. 77(d) (directing that "[i]mmediately upon the entry of an order or judgment the clerk shall serve a notice"). The parties do not dispute the lack of notice, but Bowles blames the error on the court while the Warden claims that Bowles was at fault for failing to comply with the requirements imposed by electronic filing. Regardless, Bowles's contention apparently had merit—the district court granted his motion on February 10, 2004. At this point, the district court inexplicably erred in miscalculating and then stating the cut-off date for the notice of appeal. In its marginal order, citing Rule 4(a)(6), the court denied the motion to vacate but granted the motion to reopen, giving Bowles until February 27 to file his notice of appeal. By its explicit terms, the Rule allows for only a fourteen-day extension. A timely appeal thus was required to have been filed by February 24. However, Bowles filed his notice of appeal on February 26, timely under the judge's order, but clearly not in compliance with the Rule.

On March 10, 2004, this court issued a show-cause order, questioning the late filing of the appeal. Bowles filed a response and on April 26, 2004, a motions panel of this court discharged the show-cause order and dismissed the appeal for lack of jurisdiction "as it applies to the July 28, 2003 judgment and the September 9, 2003, order." But, the order continued, "[t]he appeal was timely filed as it applies to the February 10, 2004 ruling." On September 8, 2004, construing the appeal as an application for a certificate of appealability under Fed. R.App. P. 22(b), this court denied a certificate of appealability and Bowles promptly petitioned for a rehearing. His motion for reconsideration was entirely concerned with the merits of his habeas petition denied by the district court. On December 28, 2004, perhaps unaware of the procedural disposition of the appeal, a different motions panel of this court granted Bowles's motion for reconsideration and granted in part and denied in part a certificate of appealability on some of the constitutional issues of the case. The order, which makes no mention of timeliness, states:

[W]e grant a certificate of appealability on the following issues: whether Bowles was denied a fair trial and his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments by the prosecution's questions to him on cross-examination about the fact that he did not make a statement to the police and by the prosecutor's comments regarding his failure to volunteer a statement to the police.

II
A

Respondent Warden argues that lack of subject matter jurisdiction prevents us from hearing the merits of this appeal and that the jurisdictional scope of this appeal should be limited to the marginal order of February 10, 2004, reopening the time for filing an appeal. Petitioner does not offer any argument relating to the jurisdictional problem presented. However, even if the respondent had overlooked this issue, the Federal Rules of Civil Procedure make it incumbent upon this court to dismiss any action when it appears that the court lacks jurisdiction. Fed.R.Civ.P. 12(h)(3); Janis v. Ashcroft, 348 F.3d 491, 493 (6th Cir.2003).1 See also Friends of Crystal River v. EPA, 35 F.3d 1073, 1077-78 (6th Cir.1994) (applying de novo review to questions of subject matter jurisdiction).

B

The Federal Rules of Appellate Procedure define the applicable deadlines in the courts of appeals. Fed. R.App. P. 1(a)(1); see 28 U.S.C. § 2071 (rules are consistent with acts of Congress). See also 28 U.S.C. § 2072(b) ("rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect."). When properly informed of the judgment, a party has thirty days to file a notice of appeal. Fed. R.App. P. 4(a)(1)(A). A limited extension of the time to file may also be granted upon a party's motion under Rule 4(a)(5). See Zack v. United States, 133 F.3d 451, 453 (6th Cir.1998). Where, as...

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