Fitzsimmons v. Yeager

Citation391 F.2d 849
Decision Date19 February 1968
Docket NumberNo. 16495.,16495.
PartiesPaul L. FITZSIMMONS, Appellant, v. Howard YEAGER, Principal Keeper of the New Jersey State Prison at Trenton, N. J. and the State of New Jersey.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

COPYRIGHT MATERIAL OMITTED

Paul L. Fitzsimmons, pro se.

Archibald Kreiger, Asst. Prosecutor, John G. Thevos, Prosecutor of Passaic County, Paterson, N. J., for appellee.

Submitted before McLAUGHLIN, KALODNER and FREEDMAN, Circuit Judges.

Resubmitted before STALEY, Chief Judge and McLAUGHLIN, KALODNER, HASTIE, SMITH,* FREEDMAN, SEITZ and VAN DUSEN, Circuit Judges.

OPINION OF THE COURT

FREEDMAN, Circuit Judge.

In 1959 a jury in the Superior Court of New Jersey found appellant guilty of murder in the first degree with a recommendation of mercy under which he was sentenced to life imprisonment. The present appeal is from the district court's dismissal of his petition for habeas corpus on the ground that he had not exhausted the remedies available to him in the courts of New Jersey as required by 28 U.S.C. § 2254.1

I.

We encounter at the threshold the jurisdictional problem which results when more than thirty days have elapsed after the denial of a petition for habeas corpus before a notice of appeal is filed or the certificate of probable cause required by 28 U.S.C. § 2253 is granted.

Habeas corpus is a civil remedy2 and therefore is subject to the general requirement that a notice of appeal must be filed within thirty days from the entry of the order denying the petition.3 Congress has added the requirement that where the detention complained of arises out of process issued by a state court, an "appeal may not be taken * * * unless the * * * judge who rendered the order denying the petition for habeas corpus or a circuit justice or judge issues a certificate of probable cause" 28 U.S.C. § 2253.4 Rule 81(a) (2) of the Federal Rules of Civil Procedure continues this provision in force.5

Here the district court's order dismissing the petition for a writ of habeas corpus was entered on December 7, 1966. On December 18, 1966 appellant filed in the district court an application for a certificate of probable cause and a petition for rehearing, both of which the court denied on December 23, 1966. The petition for rehearing was filed more than ten days after the entry of the order denying the petition for habeas corpus and therefore did not suspend the running of the time for filing a notice of appeal or any time required for obtaining a certificate of probable cause.6 On January 18, 1967, thirty-nine days after the denial of the petition for habeas corpus, a certificate of probable cause was granted by a judge of this Court on an application made at least thirty-four days after denial of the petition.7 Appellant then filed on January 24, 1967, more than a month and a half after the denial of the petition for habeas corpus, a formal notice of appeal in the district court.

In United States ex rel. Carey v. Keeper of Montgomery County Prison, 202 F.2d 267 (3 Cir.), cert. denied, Commonwealth of Pennsylvania ex rel. Carey v. Keeper of Montgomery County Prison, 345 U.S. 930, 73 S.Ct. 793, 97 L.Ed. 1360 (1953), a panel held that we were without jurisdiction to entertain the appeal because the application for a certificate of probable cause was not filed with us until shortly after the expiration of the thirty day period from the dismissal of the petition for habeas corpus, even though a notice of appeal and an application for a certificate of probable cause had been filed in the district court within the thirty day period and the district judge had denied the certificate only two days before the period expired. Our decision was based on the ground that the issuance of a certificate of probable cause is a condition precedent to the perfection of an appeal. In Commonwealth of Pennsylvania ex rel. Ricks v. Maroney, 314 F.2d 339 (3 Cir.), cert. denied sub nom. Ricks v. Maroney, 374 U.S. 816, 83 S.Ct. 1711, 10 L.Ed.2d 1039 (1963), another panel denied per curiam an application for a certificate of probable cause because it was lodged with our Clerk more than thirty days after the denial of the petition for habeas corpus.

Under our practice these decisions are binding on all panels of the Court. Panels therefore have deemed it to be their duty when considering appeals from the denial of habeas corpus in cases of state detention to be alert for the detection, as jurisdictional defects, of untimeliness in the application or grant of certificates of probable cause or in the filing of notices of appeal.8

Difficulties have resulted from the administration of these principles and practical considerations have made especially unworkable the requirement that the certificate of probable cause must be granted within thirty days from the date of the denial of the petition for habeas corpus. Whatever time is taken in the consideration of the application by the district judge reduces the time left for an application to the Court of Appeals. At times we have been required to act at the edge of the thirty day deadline, without adequate time to make the full examination of the original record papers which is frequently necessary because so many of these applications are made by prisoners pro se.9 We therefore ordered the present case to be resubmitted to the Court en banc in order to re-examine the problem afresh.

On full reconsideration of the subject we have reached the following conclusions, which we set out as rules for the guidance of the bar and of prisoners acting pro se in habeas corpus cases where the detention complained of arises out of process issued by a state court:

1. Notice of appeal must be filed in the district court within thirty days of the denial of a petition for habeas corpus. This is mandatory under the statute10 as well as the Federal Rules of Civil Procedure11 and is a jurisdictional requirement. See Fallen v. United States, 378 U.S. 139, 142, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964); United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960). A paper will not be deemed inadequate as a notice of appeal because of informality in its form or title, so long as from its nature it evidences an intention to appeal.12 Thus, while the filing of a formal notice of appeal is preferable practice, an application for leave to appeal in forma pauperis13 or an application for a certificate of probable cause,14 will be treated as a notice of appeal if no formal notice has been filed.

2. The running of the thirty day period for the filing of a notice of appeal will not be terminated by a motion for rehearing under Rule 59(a) or any similar motion unless it is timely and made within the time fixed by the appropriate rule, as required by Rule 73 (a) of the Federal Rules of Civil Procedure and proposed Rule 4(a) of the Federal Rules of Appellate Procedure.

3. The filing of a notice of appeal within thirty days is effective alone as the taking of an appeal, without the filing of a separate application for a certificate of probable cause or the granting of such a certificate. See proposed Rule 22(b) of Federal Rules of Appellate Procedure.

4. A certificate of probable cause need not be sought or obtained within the period of thirty days from the denial of the petition for habeas corpus.15 The statute (28 U.S.C. § 2253) fixes no prescribed time within which a certificate of probable cause must be sought or obtained, nor does it require the issuance of a certificate of probable cause as a condition precedent to the filing of a notice of appeal. It is true that § 2253 provides that an appeal may not be "taken" in habeas corpus actions attacking state detention unless a certificate of probable cause is issued, but this must be read to mean, not that a notice of appeal may not be filed with its usual effect, but that the appeal may not proceed until a certificate of probable cause is issued. This interpretation is in harmony with Rule 73(a) which provides: "Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal." Proposed Rule 3(a) of the Federal Rules of Appellate Procedure contains the same language.

A certificate of probable cause may be applied for informally, and a paper will be deemed an application for a certificate of probable cause regardless of its form or how it is entitled if its contents disclose the purpose to obtain a certificate of probable cause.16

5. The district judge, when denying a petition for habeas corpus, shall at the same time state whether in his opinion there is probable cause for an appeal.17 An application may be made to such district judge for reconsideration of his denial of a certificate of probable cause. In any event the filing of a notice of appeal, whether formal or informal, is necessary even if the district judge grants a certificate of probable cause at the time he denies a petition for habeas corpus. If the district judge denies a certificate of probable cause, a timely filing of a notice of appeal will be treated as an application for a certificate of probable cause addressed to the judges of the Court of Appeals. See proposed Rule 22(b) of the Federal Rules of Appellate Procedure.

6. Where an appeal has been filed and the district judge has refused to grant a certificate of probable cause, the Clerk of the Court of Appeals shall promptly present the file in the case to a judge or a panel of the Court for determination whether to grant or deny a certificate of probable cause. See proposed Rule 22(b) of the Federal Rules of Appellate Procedure.

These rules will be applied to all pending and future cases. They will be set out in an amendment to our Rules of Court, and...

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