Perez v. Stephens

• Decision Date: 26 February 2014
• Docket Number: 13–70006.,Nos. 13–70002,s. 13–70002
• Citation: 745 F.3d 174
• Parties: Louis Castro PEREZ, Petitioner–Appellant v. William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee. Louis Castro Perez, Petitioner–Appellee v. William Stephens, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

745 F.3d 174

Louis Castro PEREZ, Petitioner–Appellant

v.William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

Louis Castro Perez, Petitioner–Appellee

v.William Stephens, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellant.

Nos. 13–70002, 13–70006.

United States Court of Appeals,Fifth Circuit.

Feb. 26, 2014.

Mark Thomas Emery (argued), Jonathan Saul Franklin, Fulbright & Jaworski LLP, Washington, DC, Marcy Hogan Greer, Fulbright & Jaworski LLP, Austin, TX, for Petitioner–Appellant.

James Patrick Sullivan (argued), Andrew S. Oldham, Deputy Solicitor General, Thomas Merrill Jones, Assistant Attorney General, Office of the Attorney General, Office of the Solicitor General, Austin, TX, for Respondent–Appellee.

Appeals from the United States District Court for the Western District of Texas.

Before JONES, DENNIS, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

A jury convicted Louis Perez of capital murder for the killings of his ex-girlfriend, her roommate, and the roommate's nine-year-old daughter, and he was sentenced to death.¹ The Texas Court of Criminal Appeals (“CCA”) affirmed his conviction and sentence on direct appeal, and subsequently denied his petition for writ of habeas corpus. Perez filed a complaint seeking a writ of habeas corpus in the federal district court after exhausting his state-court remedies pursuant to 28 U.S.C. § 2254 (which is part of the Antiterrorism and Effective Death Penalty Act or “AEDPA”). The magistrate judge issued a Report and Recommendation denying Perez's habeas claims, which the district court adopted in full. The district court then denied Perez's request for a certificate of appealability (“COA”).²

As more fully discussed below, allegedly without consulting Perez, his attorney decided not to file a timely appeal. Upon motion, the district court vacated and reentered its judgment pursuant to Federal Rule of Civil Procedure 60(b)(6), thereby allowing Perez to file an appeal within thirty days of the reentered judgment, which he did. In a case designated Case No. 13–70006, the Director of the Texas Department of Criminal Justice's Correctional Institutions Division (“Director”) appealed from the district court's grant of Perez's motion to vacate and reenter judgment and subsequently filed a “Motion to Dismiss Appeal for Want of Jurisdiction” with this court, which we ordered carried with the case. In Case No. 13–70002, Perez appealed the reentered judgment, requesting a COA on a number of grounds.

We GRANT the Director's motion, VACATE the Civil Rule 60(b)(6)³ order and reentered judgment (therefore leaving in place the original March 27, 2012 judgment), and DISMISS Perez's appeal (No. 13–70002) for want of jurisdiction.

I. Background

The district court entered judgment denying the application for writ of habeas corpus and a COA on March 27, 2012. Accordingly, the deadline to file notice of appeal was April 26, 2012. SeeFed. R.App. P. 4(a)(1)(A). Perez's attorney, Sadaf Khan, received notice of the order the same day judgment was entered, but, after conducting research, affirmatively decided not to file an appeal. Khan did not notify Perez or the consulting attorney, Richard Burr, of the judgment in time to timely file a notice of appeal, nor did she consult with them about whether to file an appeal. In other words, Khan never obtained Perez's agreement to waive an appeal. Burr learned of the judgment after the deadline to timely appeal had passed, and he informed Khan that she needed to file an appeal as a matter of course. Accordingly, on June 25, 2012, Khan moved to reopen the time to file a notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6). The district court denied the motion, finding that Khan received notice of the judgment when it was entered and adding that she missed the May 29, 2012 deadline to file an Appellate Rule 4(a)(5) motion to extend. SeeFed. R.App. P. 4(a)(5).

Perez secured new counsel who subsequently filed Appellate Rule 4(a)(5) and 4(a)(6) motions, as well as a motion under Civil Rule 60(b)(6), arguing that Perez missed the deadline because Khan abandoned him. On December 18, 2012, the district court—finding that Khan had abandoned Perez—entered judgment granting the Civil Rule 60(b)(6) motion. It then directed the clerk to reenter the March 27 judgment so that Perez could timely appeal. The court noted that it otherwise would have granted Perez's Appellate Rule 4(a)(6) motion. On January 16, 2013, Perez timely appealed the district court's reentered judgment; the Director also timely appealed the district court's grant of Civil Rule 60(b)(6) relief.

II. Applicability of Civil Rule 60(b)(6)

“[We] review[ ] a district court's decision to grant or deny relief under [Civil] Rule 60(b) for abuse of discretion.” Flowers v. S. Reg'l Physician Servs., Inc., 286 F.3d 798, 800 (5th Cir.2002). “ ‘A district court abuses its discretion if it bases its decision on an erroneous view of the law or on a clearly erroneous assessment of the evidence.’ ” Hesling v. CSX Transp., Inc., 396 F.3d 632, 638 (5th Cir.2005) (quoting Kennedy v. Tex. Utils., 179 F.3d 258, 265 (5th Cir.1999)).

The first question before us is a simple one, though the answer is less so. Does the district court have the power to allow an otherwise untimely appeal by using Civil Rule 60(b)(6) to reenter a judgment solely in order to permit such an appeal to become timely? ⁴ If the answer to the question is “yes,” then we must examine under what circumstances the district court could do so.⁵ If the answer is “no,” then the district court lacked the power to do what it did, and we must vacate the order. The answer to the question requires consideration of some history. Prior to 1991, we allowed the use of Civil Rule 60(b)(6) to circumvent Appellate Rule 4(a) in cases where the clerk failed to send the required notice to the parties that a judgment had been entered. See Smith v. Jackson Tool & Die, Inc., 426 F.2d 5 (5th Cir.1970). In Smith, we stated that while

[w]e are fully aware that various cases have held that a motion to vacate cannot be granted for the sole purpose of extending the time for appeal nor can it be invoked as a substitute for appeal.... [W]e must also recognize that where the net result of adhering to the letter of the rules of procedure is to thwart rather than to promote justice, the Court must be wary of their rigid application.

Id. at 7–8.

In 1991, however, Appellate Rule 4(a) was amended specifically to allow the district court to re-open the appeal time when the moving party does not receive notice under Civil Rule 77(d), which provides for clerks to give parties notice of judgments. Fed. R.App. P. 4(a)(6). That same year, 28 U.S.C. § 2107, which provides the statutory time frame for civil appeals, was amended to allow extensions of time in the same circumstances as those encompassed by Appellate Rules 4(a)(5) and 4(a)(6).

Following these amendments, we held that Civil Rule 60(b)(6) is no longer available in cases that are analogous to Smith. See Matter of Jones, 970 F.2d 36, 37–39 (5th Cir.1992) (affirming the denial of a Civil Rule 60(b)(6) motion to vacate and reinstate the judgment where there was no notice because the appellants failed to meet the requirements of Appellate Rule 4(a)(6)); see also Vencor Hosps. v. Std. Life & Accident Ins. Co., 279 F.3d 1306, 1312 (11th Cir.2002) (same); Zimmer St. Louis, Inc. v. Zimmer Co., 32 F.3d 357 (8th Cir.1994) (same). Prior to 1991, we had decided some cases that hinted (without holding) that it was conceivable that a situation could exist that would allow using Civil Rule 60(b) to extend the time for appeal even in situations not governed by Smith. See United States v. O'Neil, 709 F.2d 361, 373 (5th Cir.1983) (stating “[e]xcept in truly extraordinary cases, Rule 60(b) relief should not be used to extend the time for appeal,” and thus implicitly suggesting there might be such a “truly extraordinary case”); ⁶see also In re Air Crash at Dall./Fort Worth Airport, 852 F.2d 842, 844 (5th Cir.1988) (citing 11 Wright & Miller § 2864 at 214–15). After the statutory and rule changes of 1991, however, our decisions no longer contained even such “hints.” ⁷

Instead, in 2002, we decided Dunn v. Cockrell, 302 F.3d 491 (5th Cir.2002). In Dunn, we affirmed a district court's denial of a habeas petitioner's Civil Rule 60(b)(1) motion seeking to vacate the original judgment so that he could timely appeal, holding that “[R]ule 60(b) cannot be used to circumvent the limited relief available under Federal Rule of Appellate Procedure 4(a)(5), which advances the principle of protecting the finality of judgments.” Id. at 492–93 (citation omitted). The language used in Dunn makes it particularly clear that where the sole purpose of a Civil Rule 60(b) motion is “to achieve an extension of the time in which to file a notice of appeal, it must fail.” 302 F.3d at 493;see also O'Neil, 709 F.2d at 373 (“[W]here ... the [Civil] Rule 60(b) motion ... asks only that the order be vacated and reentered.... the [Civil] Rule 60(b) motion is avowedly being used only to extend the time for appeal. It hence squarely collides with [Appellate] Rule 4(a)(5).”).⁸

Following our decision in Dunn, the Supreme Court held in Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), that the “timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” The Court explained that courts lacked power to carve out equitable exceptions to Appellate Rule 4(a) because the deadlines to appeal are jurisdictional statutory requirements under 28 U.S.C. § 2107. Id.Bowles unequivocally states that “the timely filing of a notice of appeal in a civil case is a jurisdictional requirement. Because this Court has no authority to create equitable exceptions to jurisdictional requirements, use of the ...