Sword v. Shillinger
| Citation | 941 F.2d 1213 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Decision Date | 29 November 1993 |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Before STEPHEN H. ANDERSON, BARRETT and TACHA, Circuit Judges.
This is an appeal by Donald G. Sword (Sword), appearing pro se, from an order of the district court denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The district court, following a telephonic hearing during which Sword, incarcerated in the Wyoming State Penitentiary, was represented by appointed counsel, found that no errors of federal constitutional magnitude had occurred during Sword's trial and that the state proceedings were not fundamentally unfair. While we shall not specifically address these issues, our review of the record and the briefs leads us to conclude that the district court did not err in its findings/conclusions. However, we shall not address the merits because we conclude that we lack jurisdiction to consider this appeal.
The district court entered its detailed "Order Dismissing Petitioner's Petition for a Writ of Habeas Corpus (With Findings)" on March 27, 1991. On April 2, 1991, Sword, appearing pro se, filed two documents. One entitled "Notice of Appeal" bears the clerk's entry at 2:29 p.m. The other document, entitled "Motion for Reconsideration and Reinstatement of Petition," bears the clerk's entry at 2:30 p.m. The crux of the motion was that petitioner was entitled to an in-court evidentiary hearing and the opportunity to call witnesses. The district court denied the motion on April 15, 1991. Sword did not file a new notice of appeal at any time thereafter.
Fed.R.App.P. 4(a)(1) requires that a party must file a notice of appeal within thirty days of the entry of judgment. However, Fed.R.App.P. 4(a)(4) provides that if a timely motion under the Federal Rules of Civil Procedure (Rules 50(b), 52(b) or 59) is filed by any party, the time for appeal shall run from the entry of the order granting or denying the motion. We construe Sword's "Motion for Reconsideration and Reinstatement of Petition" as a motion for rehearing. Pertinent here is the following language from Fed.R.App.P. 4(a)(4):
A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing.
Thus, a new notice of appeal had to be filed by Sword following the district court's April 15, 1991, order denying his "Motion for Reconsideration and Reinstatement" in order to vest jurisdiction in this court of the appeal. The time periods set forth in Fed.R.App.P. 4(a) are " 'mandatory and jurisdictional.' " Browder v. Department of Corrections, 434 U.S. 257, 264 (1978), quoting United States v. Robinson, 361 U.S. 220, 229 (1960) (). See also Certain Underwriters at Lloyds of London v. Evans, 896 F.2d 1255, 1256 (10th Cir.1990); Gooch v. Skelly Oil Co., 493 F.2d 366, 368 (10th Cir.), cert. denied, 419 U.S. 997 (1974). In Martinez v. Sullivan, 874 F.2d 751, 753 (10th Cir.1989), we observed that a motion to reconsider a decision on the merits will be considered to fall under Fed.R.Civ.P. 59(e), thus triggering the requirements of Fed.R.App.P. 4(a)(4), resulting in this holding:
Because the ... notice of appeal is a nullity, and because appellants failed to file a separate notice of appeal after the district court denied appellees' Rule 59(e) motion, this appeal must be dismissed for lack of appellate jurisdiction.
This court has held that a post-judgment motion filed within ten days of a final judgment should, where possible, be construed as a rule 59(e) motion to alter or amend the judgment. Dalton v. First Interstate Bank of Denver, 863 F.2d 702, 703 (10th Cir.1988); Venable v. Haislip, 721 F.2d 297, 299 (10th Cir.1983).
While pro se pleadings by prisoners must be liberally construed without regard to technicalities, see Wallace v. McManus, 776 F.2d 915, 916 (10th Cir.1985), Hughes v. Rowe, 449 U.S. 5, 9 (1980), this court did not treat a scenario quite similar to that presented in the case at bar as coming within the purview of the liberality rule. In Skagerberg v. Oklahoma, 797 F.2d 881 (10th Cir.1986), a state habeas corpus petitioner, appearing pro se, filed a single document denominated "Motion for Rule 60 Relief, or Appeal" following the district court's order denying § 2254 relief. The court held:
Although petitioner stated in his alternative motion/notice of appeal document that he sought Rule 60 relief, petitioner's characterization is not controlling. Rather, regardless of how it is characterized, a post-judgment motion made within ten days of the entry of judgment that questions the correctness of a judgment is properly construed as a motion to alter or amend judgment under Fed.R.Civ.P. 59(e).... Petitioner's motion/notice of appeal, which was served within ten days of the district court's denial of the § 2254 petition for a writ of habeas corpus, questioned the correctness of the district court's dismissal of his action. Consequently, petitioner's mischaracterized motion for Rule 60 relief should have been construed as a timely Rule 59(e) motion. Venable, 721 F.2d at 299.
Under Rule 4(a)(4), a timely Rule 59(e) motion tolls the time for filing a notice of appeal from a district court judgment. Clayton v. Douglas, 670 F.2d 143, 144 (10th Cir.), cert. denied, 457 U.S. 1109, 102 S.Ct. 2911, 73 L.Ed.2d 1319 (1982). A notice of appeal filed while a timely Rule 59(e) motion is pending is ineffective to confer jurisdiction on a court of appeals. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982). Likewise, a notice of appeal filed before a timely Rule 59(e) motion...
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