Campos v. LeFevre

• Decision Date: 03 August 1987
• Docket Number: Docket No. 86-2272
• Citation: 825 F.2d 671
• Parties: Tony P. CAMPOS, Appellant, v. Eugene S. LeFEVRE, Superintendent, Clinton Correctional Facility, et al., Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 671

825 F.2d 671

8 Fed.R.Serv.3d 642

Tony P. CAMPOS, Appellant, v. Eugene S. LeFEVRE, Superintendent, Clinton Correctional Facility, et al., Appellees.

Docket No. 86-2272.

United States Court of Appeals Second Circuit.

Submitted April 7, 1987.

Decided Aug. 3, 1987.

Tony P. Campos, pro se.

Gerald Allen, Asst. Dist. Atty., Brooklyn, N.Y., for appellees.

Before LUMBARD, OAKES, and CARDAMONE, Circuit Judges.

OAKES, Circuit Judge:

Tony P. Campos, pro se, seeks to appeal from a judgment of the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. The clerk of the district court entered the judgment on May 6, 1986. On June 16, 1986, Campos mistakenly sent a notice of appeal to the court of appeals, which was then forwarded to the district court where it was filed on July 1, 1986. Campos also filed a request for a certificate of probable cause with the district court on July 1, 1986; this request was denied on July 3, 1986. He now asks us to grant a certificate of probable cause so that he may appeal the denial of his habeas petition. We write here to address the issue of our jurisdiction over this appeal in view of the fact that Campos's appeal was plainly untimely as not having been filed within the thirty days initially allowed by Fed.R.App.P. 4(a)(1), though it was filed within an additional thirty days thereafter.

Under Stirling v. Chemical Bank, 511 F.2d 1030 (2d Cir.1975), where we took what has been referred to as the "permissive" view of Fed.R.App.P. 4(a) as it then read, Campos's notice of appeal could be treated as a motion for an extension of time if coupled with a prima facie showing of excusable neglect. We said in Stirling that "the filing of the notice of appeal within 60 days, coupled with a prima facie showing of excusable neglect, and the timely service of the notice of appeal on the opposing parties, constituted a sufficient manifestation on the part of the appellants to permit the district court, in the exercise of its discretion, to treat the notice of appeal as the substantial equivalent of a motion to extend the time because of excusable neglect." Id. at 1032 (citing Evans v. Jones, 366 F.2d 772 (4th Cir.1966); Reed v. People of the State of Michigan, 398 F.2d 800 (6th Cir.1968)). We held that "[n]othing in Rule 4(a) precludes the district court, more than 60 days after entry of judgment, from granting an extension of time to sanction the late filing of a notice of appeal within the second half of the 60-day period provided a purported notice of appeal has actually been filed within that period." 511 F.2d at 1032 (citing C-Thru Products, Inc. v. Uniflex, Inc., 397 F.2d 952, 954-55 (2d Cir.1968); Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir.1969)).

Four years after our decision in Stirling, however, the Federal Rules of Appellate Procedure were amended. Fed.R.App.P. 4(a)(5) now reads:

The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a). Any such motion which is filed before expiration of the prescribed time may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to the other parties in accordance with local rules. No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later.

All the other circuits construe this provision of Rule 4 literally as requiring the filing of a motion for extension of time and precluding a court from treating a tardy notice of appeal as the "substantial equivalent" of such a motion. See Wyzik v. Employee Benefit Plan of Crane Co., 663 F.2d 348 (1st Cir.1981) (a motion to extend time must be filed no later than thirty days after the expiration of the original appeal time); Herman v. Guardian Life Ins. Co. of North America, 762 F.2d 288, 290 (3d Cir.1985) ("[I]t is clear that a motion to extend the time must be filed no later than thirty days after the expiration of the original appeal period before a court of appeals can exercise jurisdiction over the appeal."); Sanchez v. Board of Regents of Texas Southern University, 625 F.2d 521 (5th Cir.1980) (allowing a late notice of appeal to be treated as a motion for extension of time and remanding for determination of excusable neglect by the district court, but noting that amended Rule 4(a)(5) would be given prospective application to bar similar treatment in the future); Pryor v. Marshall, 711 F.2d 63 (6th Cir.1983) (late notice of appeal which fails to allege excusable neglect or good cause can no longer serve as a substitute for motion for extension of time); United States ex rel. Leonard v. O'Leary, 788 F.2d 1238 (7th Cir.1986) (same); Campbell v. White, 721 F.2d 644 (8th Cir.1983) (notice of appeal received thirty-two days after entry of judgment could not be considered as a motion for extension of time to appeal); Pettibone v. Cupp, 666 F.2d 333 (9th Cir.1981) (language of Rule 4(a)(5) as amended precludes the court from remanding pro se litigant's late notice of appeal to district court for a finding of excusable neglect; motion for extension of time must be filed); Mayfield v. United States Parole Comm'n, 647 F.2d 1053 (10th Cir.1981) (pro se litigant's failure to make a motion for extension of time before the end of the thirty-day grace period extinguishes his right to appeal); Brooks v. Britton, 669 F.2d 665 (11th Cir.1982) (pro se litigant's failure to move for extension of time makes any implicit finding of excusable neglect by the district court ineffectual).

When a Fourth Circuit panel first addressed this issue in Shah v. Hutto, 704 F.2d 717 (4th Cir.1983), it took a position opposite to that of the other circuits. In Shah, the incarcerated appellants mailed their notice of appeal to the court two days before the thirty-day deadline, but the notice was not received in the clerk's office until one day after the deadline. Not being informed of this, the appellants did not file a motion for extension of time in which to file the notice of appeal. After reviewing the text and history of Rule 4(a)(5), the panel found that nothing in the 1979 amendment or in the notes of the Advisory Committee indicated that the amendment was meant to overturn the result reached by the court in Craig v. Garrison, 549 F.2d 306 (4th Cir.1977) (pro se litigant filing late notice of appeal that is within the period of time for an extension must be told of the rule and provided an opportunity to establish excusable neglect). Accordingly, the court held that a late notice of appeal that was mailed by a pro se litigant within thirty days of the judgment but not received and filed by the clerk until after expiration of the thirty-day period could be treated as a motion for extension of time. In the court's opinion, it was implicit in the notice of appeal that the appellants would have done whatever was necessary to file a timely appeal.

Upon en banc review, however, the Fourth Circuit reversed the panel's holding in Shah and held that the 1979 Amendment required that "a motion to extend the time must be filed no later than thirty days after the expiration of the original appeal period in order for a court of appeals to have jurisdiction over the appeal." Shah v. Hutto, 722 F.2d 1167, 1168 (4th Cir.1983) (en banc), cert. denied, 466 U.S. 975, 104 S.Ct. 2354, 80 L.Ed.2d 827 (1984). It further stated that "[a] bare notice of appeal should not be construed as a motion for extension of time, where no request for additional time is manifest." Id. at 1168-69. And it made clear that this requirement is to be applied equally to pro se litigants and litigants represented by counsel.

There was, however, a strong dissent in the en banc case, written by Senior Circuit Judge Haynsworth and joined in by Chief Judge Winter and Judges Murnaghan and Ervin. The dissenters point out that the substantive changes in Rule 4(a)(5) effected by the 1979 amendment are not relevant to the question whether a belated notice of appeal may be treated as a motion for extension of time. Rather, they say, the amendment's principal concern was the problem presented in In re Orbitec Corp., 520 F.2d 358 (2d Cir.1975), which was discussed in a note of the Advisory Committee. The problem arose when a motion for an extension of time was filed within the thirty-day extension period but the motion was not granted before the expiration of the extension period and no notice of appeal was filed. In these circumstances, a party could be penalized for the court's failure to consider promptly his motion for an extension of time. The Shah dissent states that the 1979 amendment made two changes in Rule 4 to rectify that situation. First, the amendment included an explicit requirement that a motion for an extension of time be made before expiration of the thirty-day extension period and, second, it added a provision stating that if a timely motion for an extension of time had been made, the notice of appeal could be filed within ten days after the filing of an order granting the motion, notwithstanding the fact that the thirty-day extension period had expired. The dissent saw neither of these changes as a rejection of the kind of flexible application of the rule represented by the Fourth Circuit's own Craig v. Garrison and kindred cases such as Stirling v. Chemical Bank in our circuit.

If the en banc majority in Shah and the First, Third, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits are correct, then our decision in Stirling should be overruled. This is true despite the fact that in Fearon v. Henderson, 756 F.2d 267 (2d Cir.1985), we followed Stirling in remanding...