Malone v. Avenenti

• Decision Date: 28 June 1988
• Docket Number: No. 86-15011,86-15011
• Citation: Malone v. Avenenti, 850 F.2d 569 (9th Cir. 1988)
• Parties: Timothy MALONE, Petitioner-Appellant, v. John AVENENTI, Warden; Robert Corbin, Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 569

850 F.2d 569

11 Fed.R.Serv.3d 791

Timothy MALONE, Petitioner-Appellant, v. John AVENENTI, Warden; Robert Corbin, Attorney General Respondents-Appellees.

No. 86-15011.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 12, 1988.

Submission Withdrawn March 1, 1988.

Resubmitted March 23, 1988.

Decided June 28, 1988.

Howard A. Kashman, Tucson, Ariz., for petitioner-appellant.

Greg A. McCarthy, Asst. Atty. Gen., Dept. of Law, State of Ariz., Phoenix, Ariz., for respondents-appellees.

Appeal from the United States District Court for the District of Arizona.

Before ALDISERT, ^* WALLACE and SCHROEDER, Circuit Judges.

WALLACE, Circuit Judge:

Malone seeks to appeal the dismissal by the district court of his petition for a writ of habeas corpus. We do not reach the merits of his appeal because Malone failed to perfect his appeal under rule 4(a) of the Federal Rules of Appellate Procedure.

I

The judgment denying Malone's petition was entered on September 24, 1986. No appeal was taken within the 30-day period prescribed by rule 4(a)(1) of the Federal Rules of Appellate Procedure. On November 14, 1986, the district court received a letter from Malone inquiring whether Malone had a right to appeal and stating that he had been unable to communicate with his "jailhouse lawyer." The district court treated the letter as a motion for extension of time for filing an appeal, and entered an order granting the "motion" on November 26, 1986. In this order, the district court also treated Malone's letter as a notice of appeal, and the letter was filed as such on November 26, 1986.

On August 28, 1987, respondents Avenenti, et al. (State) filed a motion to dismiss Malone's appeal on the grounds that the appeal had not been timely filed under rule 4(a)(1), and that no motion to extend the time for taking an appeal had been filed under rule 4(a)(5), Fed.R.App.P. On September 17, 1987, a motions panel of this court denied the State's motion. On March 1, 1988, we withdrew this case from submission and ordered the parties to show cause why this appeal should not be dismissed for lack of appellate jurisdiction. After careful review of the briefs filed in response to this order, the record, and our precedents, we conclude that Malone's appeal must be dismissed for lack of appellate jurisdiction.

II

We first address Malone's contention that the "law of the case" doctrine prevents our reconsideration of the issue of our jurisdiction. Malone contends the decision of the motions panel denying the State's motion to dismiss precludes us from addressing the question whether Malone complied with the requirements of rule 4(a). The only authority cited in support of this contention is Arizona v. California, 460 U.S. 605, 618-19 & n. 8, 103 S.Ct. 1382, 1391 & n. 8, 75 L.Ed.2d 318 (1983), where the Supreme Court outlined the contours of the "law of the case" doctrine. Malone's response to our order to show cause did not, however, disclose, much less attempt to distinguish, Ninth Circuit authority expressly rejecting his "law of the case" argument.

In United States v. Houser, 804 F.2d 565 (9th Cir.1986) (Houser ), we considered and rejected a claim that the law of the case doctrine bars a panel reviewing the merits of an appeal from reconsidering a motions panel's jurisdictional ruling. The time limits set forth in rule 4 are mandatory and jurisdictional. See id. at 568. Because we are obligated to dismiss whenever it becomes apparent that we lack jurisdiction, we held that the fact that a prior motions panel had denied a motion to dismiss could not free us from our independent duty to decide whether an appeal was untimely under rule 4. Id. We concluded, therefore, that "the doctrine of 'law of the case' is inapplicable to the question of our jurisdiction to consider an appeal." Id. at 569; see also National Industries, Inc. v. Republic National Life Insurance Co., 677 F.2d 1258, 1262 (9th Cir.1982) (National ) (a denial of a motion to dismiss by a motions panel does not foreclose a merits panel from reconsidering and deciding the issue of its jurisdiction to consider an untimely appeal). Malone has not pointed to any authority that undermines the conclusion we reached in Houser. We therefore reject Malone's contention that the "law of the case" doctrine prevents our reconsideration of the issue of our appellate jurisdiction.

III

An appeal from a denial of a habeas petition is considered a "civil" matter and is thus subject to the time limitations set forth in rule 4(a), Fed.R.App.P. Pettibone v. Cupp, 666 F.2d 333, 334 (9th Cir.1981) (Pettibone ). Under rule 4(a)(1), the petitioner's notice of appeal must be filed within 30 days of the date of judgment. Id. Rule 4(a)(5) provides for extensions of time in limited circumstances. An appellant may, by motion and upon a showing of good cause or excusable neglect, obtain an extension beyond the initial 30-day period. Fed.R.App.P. 4(a)(5). A party who seeks an extension during the 30-day period following the entry of the judgment may do so by an ex parte motion. Id. Where, however, a party seeks an extension after the initial 30-day period has elapsed, he must do so by formal motion with notice to the other parties. Id.; see also Note to Subdivision (a)(5), Notes of Advisory Committee on Appellate Rules following Fed.R.App.P. 4; Pettibone, 666 F.2d at 335 (rule 4(a)(5) expressly requires that appellant seeking extension of time after expiration of initial 30-day period file formal motion requesting extension of time). Where an appellant fails to file a notice of appeal within the initial 30-day period set forth in rule 4(a)(1), and likewise fails effectively to move for an extension of time within the 30-day grace period set forth in rule 4(a)(5), this court must dismiss the appeal for lack of appellate jurisdiction. Johnson v. Pulley, 685 F.2d 327, 327-28 (9th Cir.1982) (per curiam) (Johnson ); Pettibone, 666 F.2d at 335 (where appellant failed to file formal motion requesting extension of time within 30-day grace period, appeal must be dismissed rather than remanded to district court). The procedures set forth in rule 4 are strictly construed; there is no exception for prisoners proceeding pro se or for habeas corpus actions. Pettibone, 666 F.2d at 335; United States ex rel. Leonard v. O'Leary, 788 F.2d 1238, 1240 (7th Cir.1986) (per curiam) (O'Leary ); Shah v. Hutto, 722 F.2d 1167, 1168 (4th Cir.1983) (en banc) (Shah ), cert. denied, 466 U.S. 975, 104 S.Ct. 2354, 80 L.Ed.2d 827 (1984). In the present case, Malone failed to file a notice of appeal within 30 days of the date of the judgment dismissing his petition, and the 30-day grace period for filing a motion to extend has long since expired. We therefore lack jurisdiction to hear his appeal unless the letter received by the district court on November 14, 1986, satisfied the requirements of rule 4(a)(5). See Pettibone, 666 F.2d at 335.

Malone's letter did not constitute a motion for extension of time. First, the letter did not explicitly request an extension of time, but merely inquired about the availability of an appeal. Even if the district court were permitted to construe Malone's letter as a belated notice of appeal, it could not construe the notice as a motion for extension of time. Rule 4(a)(5), as amended in 1979, requires a formal motion, as opposed to the less formal procedure tolerated under the rule prior to the amendment. Id. at 335; Shah, 722 F.2d at 1168. "The language of the amended Rule ... precludes us from remanding ... on the theory that an untimely notice of appeal itself might be considered by the district judge as a motion for extension of time." Pettibone, 666 F.2d at 335; see also O'Leary, 788 F.2d at 1239 (district court may not extend time on basis of an informal application); Shah, 722 F.2d at 1168-69 (the language of the rule expressly requires the filing of a motion for extension of time; a bare notice of appeal cannot be construed as a motion for extension where no request for additional time is manifest).

Second, rule 4(a)(5) explicitly requires that a motion to extend filed during the 30-day grace period must give notice to the parties in accordance with local rules. Fed.R.App.P. 4(a)(5). In the present case, the district judge, without notice to the State or a hearing, entered an order granting Malone an extension of time and treating his informal application as a notice of appeal. Under Ninth Circuit precedent and the clear language of the rule itself, the district court was without authority to act ex parte; it could proceed only upon motion and after notice of hearing served on the State. North Umberland Mining Co. v. Standard Accident Insurance Co., 193 F.2d 951, 952 (9th Cir.1952) (North Umberland ); see Advisory Committee Notes following rule 4 (explaining that rule 4(a)(5) codifies the North Umberland holding); see also Truett v. Johns-Manville Sales Corp., 725 F.2d 1301, 1302 (11th Cir.1984) (per curiam) (Truett ) (where appellant files motion for extension after the original 30-day period prescribed by Fed.R.App.P. 4(a)(1), the district court is without jurisdiction to grant the motion ex parte).

The State alleges that it was not notified of Malone's letter until after the order granting Malone an extension of time had become a fait accompli. It appears from the record that the State was not notified before the district court acted on the letter as required by rule 4(a)(5). The district court's order granting Malone an extension of time ex parte was therefore void ab initio. North Umberland, 193 F.2d at 952; Truett, 725 F.2d at 1302.

Finally, even if Malone had timely filed a motion for an extension of time, the district judge could not grant it unless he determined that Malone demonstrated "excusable neglect." Fed.R.App.P. 4(a)(5). This standard is strictly construed against late filers. State of Oregon v. Champion International Corp., 680 F.2d 1300, 1301 (...