Lizardo v. USA.

• Decision Date: 10 August 2010
• Docket Number: No. 08-2044.,08-2044.
• Parties: Juan Francisco LIZARDO, Appellant v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Third Circuit

619 F.3d 273

Juan Francisco LIZARDO, Appellant

v.UNITED STATES of America.

No. 08-2044. Submitted Under Third CircuitLAR 34.1(a) May 3, 2010.

United States Court of Appeals,Third Circuit.

Filed: Aug. 10, 2010.

Nelson L. Jones, Office of United States Attorney, United States Courthouse, St. Thomas, Virgin Islands, for Appellee.

Joseph A. DiRuzzo, III, Law Office of Marjorie Roberts, St. Thomas, Virgin Islands, for Appellant.

Before: SMITH, CHAGARES, and JORDAN, Circuit Judges.

OPINION

SMITH, Circuit Judge.

Juan Francisco Lizardo was convicted of various drug crimes in the District of the Virgin Islands. He later petitioned for relief under 28 U.S.C. § 2255. The District Court denied his petition and he sought and received a certificate of appealability to this Court. ¹ Three issues were certified for appeal, but the first is dispositive: whether Lizardo's untimely motion for reconsideration, see Fed.R.Civ.P. 59(e), tolled the time for filing a notice of appeal, see Fed. R.App. P. 4(a)(4)(A). ²

Rule 59(e) ³ is a claim-processing rule. Accordingly, a timeliness objection to a motion brought under that rule may be forfeited if it is not raised in the district court. In this case, Lizardo's untimely Rule 59(e) motion was decided, without objection, by the District Court. The Government, therefore, forfeited any timeliness objection it could have made at that stage of the litigation. The forfeiture in the District Court, however, did not render the Rule 59(e) motion timely for purposes of Rule 4(a)(4)(A) of the Federal Rules of Appellate Procedure. ⁴ The Government is free to challenge Lizardo's reliance on Rule 4(a)(4)(A)'s tolling provision-which requires that the underlying Rule 59(e) motion that initiated the tolling have been timely filed, Fed. R.App. P. 4(a)(4)(A)-in this Court. As such, the Government's challenge in this Court to Lizardo's invocation of Rule 4(a)(4)(A)'s tolling provision is meritorious. Without the benefit of tolling, Lizardo's notice of appeal was untimely and his appeal must be dismissed for lack of jurisdiction. See Fed. R.App. P. 4(a)(1)(B).

I.

Lizardo was convicted of conspiracy to possess with intent to distribute cocaine, 21 U.S.C. § 846, conspiracy to import cocaine into the United States, id. § 963, and possession with intent to distribute, id. § 841(a)(1). On August 16, 2002, Lizardo moved to vacate his sentence under 28 U.S.C. § 2255. The District Court denied the petition on January 25, 2008. On February 29, 2008, Lizardo sought reconsideration, which was denied on March 17, 2008. A few weeks later, on April 7, 2008, Lizardo filed his notice of appeal, challenging the denial of his motion for reconsideration and his § 2255 petition. On May 16, 2008, Lizardo sought a certificate of appealability from this Court. We granted one on September 29, 2008. ⁵

II.

In a civil case involving the United States, a notice of appeal must be filed within 60 days after the judgment or order appealed from is entered. Fed. R.App. P. 4(a)(1)(B). In some circumstances, where a party has timely filed a post-judgment motion in the district court, the deadline for filing a notice of appeal may be tolled until that motion has been decided:

(4) Effect of a Motion on a Notice of Appeal.

(A) If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:

(i) for judgment under Rule 50(b);

(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;

(iii) for attorney's fees under Rule 54 if the district court extends the time to appeal under Rule 58;

(iv) to alter or amend the judgment under Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the motion is filed no later than 10 days after the judgment is entered.

Fed. R.App. P. 4(a)(4). At the time relevant to this appeal, Rule 59(b) required a party seeking reconsideration of an order to file its Rule 59(e) motion within ten days of that order. Fed.R.Civ.P. 59(b).

In Lizardo's case, the following timeline of events unfolded:

January 25, 2008 The District Court denied Lizardo's § 2255 petition.

February 8, 2008 Deadline for filing a motion for reconsideration under Rule 59(e) (ten days from the January 25, 2008 order).

February 29, 2008 Lizardo moved for reconsideration under Rule 59(e).

March 17, 2008 The District Court denied Lizardo's motion for reconsideration.

March 25, 2008 If there is no tolling under Rule 4(a)(4)(A), then the time for filing a notice of appeal expires (60 days from the January 25, 2008 order).

April 7, 2008 Lizardo filed a notice of appeal to this Court.

May 16, 2008 If there is tolling under Rule 4(a)(4)(A), then the time for filing

a notice of appeal expires (60 days from the March 17, 2008 order).

If Lizardo's motion for reconsideration tolled the time for filing a notice of appeal, his notice of appeal was timely. If it did not, his notice of appeal was untimely and we lack jurisdiction. Fed. R.App. P. 4(a)(1)(B); 28 U.S.C. § 2107(b); see Bowles v. Russell, 551 U.S. 205, 212-13, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (explaining that procedural rules grounded in statutes are jurisdictional).

Lizardo argues that the Government waived its right to object to the tolling of the notice of appeal deadline because it did not object to his untimely Rule 59(e) motion in the District Court. ⁶ The “question [of] whether [Lizardo]'s notice of appeal was timely is a question of law over which we exercise plenary review.” DL Res., Inc. v. FirstEnergy Solutions Corp., 506 F.3d 209, 213 (3d Cir.2007).

Rule 59(e) is a claim-processing rule, not a jurisdictional rule, so objections based on the timeliness requirement of that rule may be forfeited. But the forfeiture of a timeliness objection in the district court does not render an untimely motion timely for purposes of Rule 4(a)(4)(A) in this Court. As such, the Government's failure to object to Lizardo's untimely Rule 59(e) motion in the District Court did not foreclose its ability to challenge the timeliness of that motion for the purposes of tolling under Rule 4(a)(4)(A).

A.

Lizardo's Rule 59(e) motion was untimely. He filed his motion for reconsideration over a month after the District Court denied his § 2255 petition, well after the ten days provided by the rule. Fed.R.Civ.P. 59(b). The Government did not object to Lizardo's motion as untimely and the District Court denied the motion on the merits.

Under our pre- Bowles precedent, “any substantive action a court t [ook] on an untimely motion [would have been deemed] a nullity.” Smith v. Evans, 853 F.2d 155, 159 (3d Cir.1988) (internal quotation marks omitted). Thus, “[a]n untimely motion, even if acted upon by the district court, [could not] toll the time for filing a notice of appeal,” id. at 157. We reached these conclusions based on our understanding that a “Rule 59(e) motion must be served within ten days of entry of judgment” because “[t]he ten day period is jurisdictional, and cannot be extended in the discretion of the district court.” Id. (internal quotation marks omitted). Were we to follow this approach, we would dismiss Lizardo's appeal for lack of jurisdiction because Rule 59(e)'s ten day time limit, applied as a jurisdictional rule, would have rendered the motion for reconsideration a nullity. Lizardo would not be able to invoke Rule 4(a)(4)(A)'s tolling provision and his notice of appeal would be untimely. While the result we reach today is the same, we can no longer treat Rule 59(e) as a jurisdictional rule, nor view Lizardo's untimely motion for reconsideration as a nullity.

What constitutes a jurisdictional rule has undergone significant change in recent years. The Supreme Court's decisions in Bowles, Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam), and Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004), require us to depart from our pre- Bowles approach. ⁷ Rule 59(e) can no longer be deemed a jurisdictional rule. The Bowles Court explained that time limits that are not based on a statute, such as the one governing Rule 59(e), are not jurisdictional rules, but claim-processing rules. See Bowles, 551 U.S. at 210-11, 127 S.Ct. 2360. “[S]tatute-based filing period [s],” on the other hand, are jurisdictional. Id. at 212, 127 S.Ct. 2360. Compare id. at 213, 127 S.Ct. 2360 (holding that failure to file notice of appeal in accordance with 28 U.S.C. § 2107(c) and Rule 4(a)(6) resulted in an error of “jurisdictional magnitude”), with Kontrick, 540 U.S. at 452-56, 124 S.Ct. 906 (holding that Rule 4004 of the Federal Rules of Bankruptcy Procedure was not jurisdictional in part because it was not grounded in a statute).

According to Bowles, “court-promulgated rules,” 551 U.S. at 211-12, 127 S.Ct. 2360, are distinct from “limits enacted by Congress,” and should not be treated as jurisdictional rules, id. at 212, 127 S.Ct. 2360. For example, “the rule-based time limit for criminal cases,” a court-promulgated rule, “may be waived because ‘... procedural rules adopted by the Court for the orderly transaction of its business are not jurisdictional and can be relaxed by the Court in the exercise of its discretion....’ ” Id. (quoting Schacht v. United States, 398 U.S. 58, 64, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970)). Similarly, Rule 4004 of the Federal Rules of Bankruptcy Procedure, a rule that sets a deadline for objecting to a debtor's discharge, Fed. R. Bankr.P. 4004, was deemed a claim-processing rule, and did not affect a court's jurisdiction. Kontrick, 540 U.S. at 452-56, 124 S.Ct. 906.

Rule 59(e) is akin to Rule 4004 of the Federal Rules of Bankruptcy Procedure. Both rules were promulgated by the Supreme Court under the Rules Enabling Act. Compare 28 U.S.C. §§ 2071-2072 (Rule 59), wi...