Jackson v. Crosby, No. 04-10986.

• Decision Date: 09 July 2004
• Docket Number: No. 04-10986.
• Citation: 375 F.3d 1291
• Parties: Etheria Verdel JACKSON, Petitioner-Appellant, v. James CROSBY, Secretary, Florida Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

375 F.3d 1291

Etheria Verdel JACKSON, Petitioner-Appellant, v. James CROSBY, Secretary, Florida Department of Corrections, Respondent-Appellee.

No. 04-10986.

United States Court of Appeals, Eleventh Circuit.

July 9, 2004.

Eric Pinkard (Court-Appointed), Tampa, FL, for Petitioner-Appellant.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, BLACK and CARNES, Circuit Judges,

TJOFLAT, Circuit Judge:

I.

On December 15, 2003, the district court entered a final judgment in this case denying petitioner habeas corpus relief from his conviction and sentence for capital murder. On January 5, 2004, petitioner filed a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e).¹ The motion was untimely because petitioner failed to file it within ten days of the entry of final judgment as Rule 59(e) requires. On January 29, 2004, the district court entered a written order stating that the motion was "DENIED."² On February 27, 2004, petitioner filed a notice of appeal in the district court; the notice stated that he was appealing the final judgment of December 15, 2003 and the order of January 29, 2004.

On April 7, 2004, this panel dismissed petitioner's appeal of the December 15, 2003 judgment in an order containing the following language:

Appellant's motion to alter or amend, made pursuant to Fed.R.Civ.P. 59(e) was not filed within ten business days of and did not toll the appeal period for the December 15, 2003, judgment. Fed. R.App. P. 4(a)(4)(A); Fed.R.Civ.P. 6(a), 58, 60(b). Therefore the appeal is DISMISSED as to that order.³

On April 20, 2004, petitioner moved this court to reconsider its April 7 order dismissing his appeal of the December 15, 2003 judgment.⁴ In his motion, petitioner conceded that the Rule 59(e) motion he filed in the district court on January 5, 2004 might be untimely. If untimely, he asks that we treat the motion as timely under the "unique circumstances" doctrine. He cites Willis v. Newsome, 747 F.2d 605 (11th Cir.1984), in which we granted relief under that doctrine, and states that the unique circumstances surrounding the filing of petitioner's Rule 59(e) motion "fall[ ] squarely within the situation compelling relief in Willis."

The "unique circumstances" petitioner relies on are set out in the affidavit of one of the attorneys who filed his Rule 59(e) motion, David R. Gemmer. In his affidavit, Gemmer states that "[o]ne of my tasks [in filing the Rule 59(e) motion] was to determine the deadline for filing the motion." To this end, he reviewed the Federal Rules of Civil Procedure and the district court's local rules. He

"understood from that review that the Motion had to be timely filed within ten days from the date of entry of the order in question. However, [he] also was aware of Fed. R. Civ. P[.] 6 and Local Rule 4.20, which provided for three additional days to file when there had been service of a notice or paper by mail.⁵ While the [December 15, 2003 judgment] had been mailed to [his office, he] was not sure whether the local rule applied to the Motion. [He] either had no knowledge or had no recollection of Cavaliere v. Allstate Insurance Co., 996 F.2d 1111 (11th Cir.1993)." [See infra part II.]

After reviewing the above rules, Gemmer telephoned "the office of the Clerk in the Federal District Court ... several days before December 31, 2003."⁶ During his conversation with the woman who answered the telephone, he mentioned Local Rule 4.20 and asked whether Local Rule 4.20 "applied. She affirmatively told [him] that Local Rule 4.20 applied to [his] situation." Responding to his statement that he was having "problems with counting the holidays," she said that "December 25 and 26th were official court holidays, the extra day being established by the President in a special order." He then "counted off the days accounting for the holidays and Rule 4.20 and determined that Monday, January 5, 2004, would be the deadline for filing the [m]otion." "Had the clerk expressed any doubt ... about the application of Rule 4.20, [he] would have conducted additional research, but her answer was clear, emphatic, and unreserved, as was her affirmation that, accounting for holidays, weekends, and Rule 4.20, January 5, 2004 was [his] deadline." Nonetheless, "[b]oth the clerk and [Gemmer] acknowledged that the clerk's representations were not binding."

Gemmer goes on to state that his confidence that the motion had passed muster as timely was increased when the state and the court addressed the Application for Certificate of Appealability substantively [i.e., for the purpose of identifying claims that satisfied the criterion of 28 U.S.C. § 2253(c)(3)], rather than dismissively as based on a void notice of appeal. This buttressed [his] belief that the denial of the Motion to Alter or Amend was based on the merits.

In the body of his motion for reconsideration, petitioner urges that, in determining whether the unique circumstances doctrine applies, we should take into account, in addition to what Gemmer says in his affidavit, the following factors.⁷ First, the State, in responding to his Rule 59(e) motion, did not contend that it was untimely. "Had it done so in a timely fashion ..., [petitioner] could have filed the Notice of Appeal in a timely fashion." Second,

[h]ad the trial judge denied the Motion for untimeliness January 27, 2004, [petitioner] would have had more than two weeks to seek relief for excusable neglect under Fed. R.App. P. 4(a)(5). Instead, the lack of any objection or notice of the issue in this case lulled counsel into proceeding on the schedule based on the assumption the Rule 59(e) motion was timely.

II.

A notice of appeal challenging the final judgment in a civil action must be filed no later than thirty days after the judgment is entered on the district court's docket. Fed. R.App. P. 4(a)(1)(A). A timely Rule 59(e) motion to alter or amend the judgment automatically tolls this thirty-day period, so that it begins to run from the date of the order denying the motion. Fed. R.App. P. 4(a)(4)(A).⁸ The motion to alter or amend the judgment is timely if filed "no later than 10 days after entry of judgment." Fed.R.Civ.P. 59(e); see Advanced Estimating Sys., Inc. v. Riney, 77 F.3d 1322, 1323 (11th Cir.1996) ("Untimely motions under Rule[ ] 59 ... will not toll the time for filing an appeal.").

Because the time period for filing a motion to alter or amend the judgment is less than eleven days, intermediate Saturdays, Sundays, and legal holidays are not included in the computation. Fed.R.Civ.P. 6(a). Legal holidays include, inter alia, Christmas Day, New Year's Day, and "any other day appointed as a holiday by the President or the Congress of the United States...." Id.

In this case, the judgment was entered on Monday, December 15, 2003. To toll the time for filing an appeal, petitioner's motion to alter or amend the judgment had to have been filed by Tuesday, December 30, which was ten days later, not counting two weekends and Christmas Day. The motion was actually filed on January 5, 2004.⁹ The motion was therefore untimely and did not toll the time for filing a notice of appeal from the December 15 judgment. Accordingly, the notice of appeal was due, as prescribed by Federal Rule of Appellate Procedure 4(a)(4)(A), on January 14, 2004, which was thirty days after the entry of the December 15 judgment. The notice of appeal petitioner filed on February 27, 2004 was therefore untimely.

According to his affidavit, Gemmer believed that "Fed. R. Civ. P[.] 6 and Local Rule 4.20 ... provided for three additional days to file when there had been service of a notice or paper by mail." He had received the December 15, 2003 judgment by mail; nevertheless, he was "not sure whether the local rule applied to [his Rule 59(e)] Motion."

The Rule 6 provision Gemmer was referring to is part (e), which we quote in the margin. See supra note 5. Gemmer was unfamiliar with our decision in Cavaliere v. Allstate Ins. Co., 996 F.2d 1111 (11th Cir. 1993). Had he read it, he would have discovered that the appellant there, Cavaliere, made the same argument about Rule 6(e) that he and his co-counsel advance here. Cavaliere argued that because the final judgment was "served" by the clerk of the court by mail,¹⁰ Rule 6(e) provided him with three extra days to file his Rule 50(b) motion for new trial. We rejected Caviliere's argument. We held that Rule 6(b), which bars the district court from "extend[ing] the time for taking any action under Rules 50(b) ... and [59](e)," renders Rule 6(e) ineffective with respect to the time for filing Rule 59 motions. Given this holding, is petitioner's argument that Local Rule 4.20 provided him with three extra days for filing his Rule 59(e) motion valid? The answer has to be no.

The district court promulgated Local Rule 4.20 under the authority provided by 28 U.S.C. § 2071(a), which states:

The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed under [28 U.S.C. § 2072].

(emphasis added.). Federal Rule of Civil Procedure 6 (and each of its subparts) was prescribed under § 2072. Rule 83 states in part (a) that "[a] local rule shall be consistent with — but not duplicative of — Acts of Congress and rules adopted under 28 U.S.C. § 2072. . . ." Local Rule 4.20, to the extent it is inconsistent with Rule 6(e), is therefore invalid. Local Rule 4.20's allowance of three extra days for filing Rule 59 motions is inconsistent with Rule 6(b)'s ban on extending the rule's ten-day limitations period and is therefore a nullity. In sum, petitioner's Rule 59(e) motion was untimely.

III.

Petitioner asks that we treat his motion as timely under the "unique circumstances" doctrine. The unique circumstances doctrine excuses a litigant's...