Marshall v. Comm'r Pa. Dep't of Corr.

• Decision Date: 25 October 2016
• Docket Number: No. 16-9000,16-9000
• Citation: 840 F.3d 92
• Parties: Jerome Marshall, Appellant v. Commissioner Pennsylvania Department of Corrections; Superintendent Greene SCI; District Attorney Philadelphia; Attorney General Pennsylvania; Secretary Department of Corrections; William S. Stickman
• Court: U.S. Court of Appeals — Third Circuit

840 F.3d 92

Jerome Marshall, Appellant

v.Commissioner Pennsylvania Department of Corrections; Superintendent Greene SCI; District Attorney Philadelphia; Attorney General Pennsylvania; Secretary Department of Corrections; William S. Stickman

No. 16-9000

United States Court of Appeals, Third Circuit.

Submitted By the Clerk for Possible Dismissal Due to a Jurisdictional Defect, July 13, 2016

Opinion filed: October 25, 2016

Maureen C. Coggins, Esq., 523 West Linden Street, Allentown, PA 18101.

Christian J. Hoey, Esq., Rubino & Hoey, 50 Darby Road, Paoli, PA 19301, Counsel for Appellant.

Susan E. Affronti, Esq., Philadelphia County Office of District Attorney, 3 South Penn Square, Philadelphia, PA 19107, Counsel for Appellees.

Before: SMITH, Chief Judge, HARDIMAN, and RESTREPO, Circuit Judges

OPINION OF THE COURT

PER CURIAM

Jerome Marshall is currently pursuing a petition for a writ of habeas corpus in the District Court. Marshall is represented by counsel, but he filed a motion to remove counsel and to proceed pro se. He later filed a notice of appeal challenging the District Court's purported denial of that motion. The District Court, however, had not yet entered or announced any decision on that motion. To the contrary, the District Court had expressly advised Marshall that it had not made a decision and would do so only later. Thus, when Marshall filed his notice of appeal, the District Court had not yet entered or announced any decision that could be brought before us for appellate review. The District Court later denied Marshall's motion.

The question presented by these circumstances is whether Marshall's notice of appeal has ripened now that the District Court has issued its decision. We conclude that it has not. Consequently, we will dismiss this appeal for lack of jurisdiction.

I. Background

Marshall was sentenced to death in Pennsylvania in 1984, and he has been pursuing a federal habeas petition since 2003. Marshall initially filed his petition through the Federal Community Defender. Many years later, however, Marshall became dissatisfied with the Community Defender's services and filed a motion for appointment of new counsel. The District Court granted that motion and appointed Christian Hoey and Maureen Coggins to represent Marshall.

Marshall soon became dissatisfied with their services as well, apparently because they would not withdraw the habeas petition filed by the Community Defender and assert different claims. Marshall eventually filed pro se a document titled “Petitioner's Pro Se Omnibus Motion.” (ECF No. 102.) In that document, Marshall requested an order: (1) removing his new counsel; (2) striking the habeas petition and all other documents filed by the Community Defender; (3) allowing the filing of a new habeas petition “nunc pro tunc”; and (4) remanding for a new hearing “nunc pro tunc” in state court. It appears that Marshall sought to proceed pro se in order to dismiss all of his counseled claims and assert different claims that may be both procedurally defaulted and untimely (though we express no opinion on that issue).

By order entered April 1, 2015, the District Court scheduled a hearing on Marshall's request to remove counsel but dismissed Marshall's last three requests without prejudice because he remained represented by counsel at the time. (ECF No. 101.) Shortly thereafter, counsel filed a motion seeking a determination of Marshall's mental competence. Marshall responded with a supplemental motion to remove counsel. (ECF No. 113.) In light of these developments, two issues remained to be determined by the District Court—whether Marshall was mentally competent, and whether to remove Hoey and Coggins as counsel and permit Marshall to proceed pro se.

The District Court held three hearings on these issues before Marshall ultimately consented to a psychiatric evaluation. Dr. Francis Dattilio conducted the evaluation and issued a report opining that Marshall is not competent either to assist his counsel or to proceed pro se. The District Court then held a fourth hearing on February 17, 2016. At the hearing, Dr. Dattilio testified consistently with his report that Marshall is not competent. The District Court then took the issues of Marshall's competence and the removal of counsel under advisement. In doing so, the District Court made it very clear at the conclusion of the hearing that it had not yet decided those issues:

There are two things that need to be decided ... first, whether or not Mr. Marshall is competent and, if not, in what ways is he not competent. And then, second, whether or not I'm going to grant his request to discharge his current counsel. I will be deciding these matters sooner rather than later. I'm not going to make any rash promises about how soon is soon, but I'm talking weeks, not months or years. And when I do decide them, there will be a briefing schedule....

(ECF No. 136; N.T. 2/17/16, at 73–74.) Marshall was present at the hearing.

Eight days later, however, and before the District Court had announced any decision, Marshall filed pro se the notice of appeal at issue here. (ECF No. 137.) The notice states in relevant part that Marshall “appeals ... from the Order [of] ... Judge James Knoll Gardner, on the date of February 18th, 2016, denying petitioner's motions to remove counsel and denying petitioner's Sixth Amendment right to proceed pro-se. Petitioner seeks reversal of that order.” (Id. at 1) (capitalization and punctuation standardized). In fact, there was no such order, and Marshall's reference to a February 18 order appears to be a reference to the February 17 hearing.

The District Court ultimately made its decision on these issues and, by order entered March 24, 2016, it found Marshall mentally incompetent to proceed pro se and denied his request for removal of counsel. (ECF No. 141.) Marshall's 30–day deadline to appeal that ruling expired on April 25, 2016 (April 23 being a Saturday). See Fed. R. App. P. 4(a)(1)(A)

. Neither Marshall nor his counsel filed anything with the District Court or this Court by that time, and Marshall himself has filed nothing since. After Marshall filed his notice of appeal, the Clerk notified the parties that this appeal would be considered for possible dismissal due to a jurisdictional defect and gave them an opportunity to respond. No party has filed a response.

II. Analysis

“An appellate court lacks jurisdiction over an appeal that is untimely filed, including premature appeals.”

Lazorko v. Pa. Hosp., 237 F.3d 242, 248 (3d Cir. 2000)

. Marshall's notice of appeal was premature because, when he filed it, the District Court had not yet issued or announced its decision on his motion for removal of counsel. Thus, unless there is some basis to deem Marshall's notice of appeal to have ripened now that the District Court has ruled, we must dismiss this appeal as “premature and void.” Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 585 (3d Cir. 1999).

We conclude that there is no such basis and therefore will dismiss this appeal. There are two ways in which premature appeals can ripen in this Circuit—under Rule 4(a)(2) of the Federal Rules of Appellate Procedure

, and under the doctrine based on Cape May Greene, Inc. v. Warren, 698 F.2d 179 (3d Cir. 1983). See ADAPT of Phila. v. Phila. Hous. Auth., 433 F.3d 353, 364 (3d Cir. 2006). Neither applies in this situation. Even if their requirements were otherwise satisfied, neither permits the ripening of an appeal filed before the District Court announces the decision sought to be challenged.

A. Rule 4(a)(2)

Rule 4(a)(2)

is the rule governing premature notices of appeal. The rule provides that “[a] notice of appeal filed after the court announces a decision or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.” Fed. R. App. P. 4(a)(2) (emphasis added). By its terms, this rule applies only when the District Court actually has announced some decision or order. See United States v. Cooper, 135 F.3d 960, 962 (5th Cir. 1998) (holding that Rule 4(a)(2) requires an actual District Court “decision” and does not permit the ripening of an appeal from a Magistrate Judge's recommendation);¹

Williams v. Roberts, 116 F.3d 1126, 1127 n.3 (5th Cir. 1997) (per curiam) (holding that a pro se prisoner's appeal filed before the District Court announced its decision did not ripen under Rule 4(a)(2) ).

Rule 4(a)(2)

does not apply here because Marshall filed his notice of appeal before the District Court announced its decision. The District Court announced its decision only later, and “not even Rule 4(a)(2) can cause a notice of appeal that is filed before a ruling has even been announced to encompass the later-announced ruling.” 16A Charles Alan Wright et al., Federal Practice and Procedure§ 3950.5 (4th ed. 2008) ; see also DeJohn v. Temple Univ., 537 F.3d 301, 306, 307 n.3 (3d Cir. 2008) (holding that Rule 4(a)(2) did not permit challenge to the final judgment on an appeal from a prior interlocutory order).

Applying the rule in this situation also would not comport with its purpose. Rule 4(a)(2)

is “intended to protect the unskilled litigant who files a notice of appeal from a decision that he reasonably but mistakenly believes to be a final judgment[.]” FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269, 276, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991). The Rule does not apply when “[a] belief that ... a decision is a final judgment would not be reasonable.” Id. In this case, it was not reasonable for Marshall to conclude that the District Court announced a final decision because the District Court did not announce any decision at all. To the contrary, the District Court expressly stated that it had not made a decision and would do so in the future. Even making allowances for Marshall's pro se status, this situation does not present the kind of trap for the unwary that Rule 4(a)(2)

was designed to prevent.

B. The Cape May Greene Doctrine

The Cape May Greene

doctrine...