U.S. v. Ceballos-Martinez

• Decision Date: 16 June 2004
• Docket Number: No. 02-2273.,02-2273.
• Citation: 387 F.3d 1140
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fernando CEBALLOS-MARTINEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

387 F.3d 1140

UNITED STATES of America, Plaintiff-Appellee, v. Fernando CEBALLOS-MARTINEZ, Defendant-Appellant.

No. 02-2273.

United States Court of Appeals, Tenth Circuit.

Filed June 16, 2004.

Appeal from the United States District Court for the District of New Mexico, (D. Ct. No. CR-01-1155 JC).

Submitted on the briefs:^* Alonzo J. Padilla, Assistant Federal Public Defender, Albuquerque, NM, for Plaintiff-Appellant.

David C. Iglesias, United States Attorney, and David N. Williams, Assistant United States Attorney, Office of the United States Attorney, Albuquerque, NM, for Defendant-Appellee.

Before TACHA, Chief Circuit Judge, McKAY, and McCONNELL, Circuit Judges.

ORDER

TACHA, Chief Circuit Judge.

Upon further consideration of appellant's petition for rehearing, the court called for an en banc poll.

The petition for rehearing was transmitted to the en banc court, which is composed of all of the judges of the court who are in regular active service, and is denied. Judges Henry, Briscoe, Lucero, and Hartz would grant rehearing.

HARTZ, Circuit Judge, dissenting, with whom BRISCOE and LUCERO, Circuit Judges, join.

The issue addressed in the panel opinion is whether Defendant satisfied the prison mailbox rule by depositing his notice of appeal with the prison mail system by September 25, 2002. It is uncontested that he did; the government does not dispute that the notice of appeal was mailed by the prison in an envelope postmarked September 24, 2002. Nevertheless, rejecting a "myopic approach to statutory construction," the panel reads "may" in Federal Rule of Appellate Procedure 4(c)(1) to say "must," and dismisses Defendant's appeal because the rule required him to establish compliance with the prison mailbox rule by means of either a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement. I respectfully disagree.

Rule 4(c)(1) states:

If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution's internal mail system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

(emphasis added). I can think of no reason why the drafters of Rule 4(c)(1) would have used "may" rather than "must" to convey the meaning given that provision by the panel opinion. The natural, common-sense meaning of the rule is that proof by declaration or affidavit is permissive. That construction of the rule also leads to a common-sense result on the issue decided by the panel—why treat a timely notice of appeal as untimely?

For those interested in "legislative history," the history in this case supports my view. Supreme Court Rule 29.2 states:

If submitted by an inmate confined in an institution, a document is timely filed if it is deposited in the institution's internal mail system on or before the last day for filing and is accompanied by a notarized statement or declaration in compliance with 28 U.S.C. § 1746 setting out the date of deposit and stating that first-class postage has been prepaid.

After that rule was promulgated, the Judicial Conference's Advisory Committee on Appellate Rules recommended adoption of the same rule, with one alteration. According to the Committee's minutes of its April 17, 1991, meeting, it decided that a statement of timely filing should not be required. The Committee recommended language essentially identical to the current third sentence of Federal Rule of Appellate Procedure 4(c)(1):

Timely filing may be shown by a notarized statement or by a declaration in compliance with 28 U.S.C. § 1746 setting forth the date of deposit and stating that first-class postage has been prepaid.

Rule 4(c) was amended in 1998 to add a sentence requiring that inmates use a prison system designed for legal mail if such a system is available. But the changes to the sentence regarding declarations and notarized statements were solely for stylistic reasons. The minutes of the Appellate Rules Advisory Committee and of the Judicial Conference's Standing Committee on Rules do not indicate any intent to make it mandatory to submit a statement or declaration. On the contrary, as reported in the minutes of the January 1996 Standing Committee meeting, the Advisory Committee informed the Standing Committee that the only substantive change to the rule was to require use of an available legal-mail system.

At the least, I would have hoped that the panel would have given Defendant an opportunity to submit a declaration or affidavit after the opinion was filed, see Sulik v. Taney County, 316 F.3d 813, 814 (8th Cir.2003) (postmark showed that prisoner had met deadline), or would have remanded to the district court for fact finding, see United States v. Propst, 68 Fed.Appx. 509 (4th Cir.2003).

I would therefore grant rehearing en banc on the issue addressed by the panel, reverse the panel opinion, and leave to the panel the task of resolving the issues raised by the parties' briefs.

ORDER

Appellant's petition for rehearing is denied.

The opinion filed February 12, 2004, is hereby replaced with the attached revised opinion.

Defendant Fernando Ceballos-Martinez seeks to appeal his sentence imposed by the district court. Because Mr. Ceballos-Martinez's notice of appeal fails to comport with Fed. R.App. P. 4(c)(1), we lack subject-matter jurisdiction to consider this appeal. Therefore, we DISMISS.

I. Background

A federal grand jury indicted Mr. Ceballos-Martinez on one count of possessing with intent to distribute more than 500 grams of cocaine, to which he pleaded guilty. Mr. Ceballos-Martinez seeks to appeal the determination of the length of his sentence. The district court, however, received Mr. Ceballos-Martinez's notice of appeal, which he personally filed while in prison,¹ five days after the deadline for filing such a notice. Moreover, his notice of appeal failed to include a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement setting forth the date he deposited his notice of appeal with prison officials and that he pre-paid first-class postage for his filings, and we have not subsequently received such a filing.

Mr. Ceballos-Martinez argues that the district court's receipt of his notice of appeal five days after the filing deadline is timely under the "prisoner mailbox rule."² See Fed. R.App. P. 4(c)(1). In response, the government argues that we lack subject-matter jurisdiction to entertain this appeal under Fed. R.App. P. 4(c)(1).³

II. Discussion

"Without jurisdiction [a] court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (internal quotations omitted). "The filing of a timely notice of appeal is an absolute prerequisite to our jurisdiction." Parker v. Bd. of Pub. Utils., 77 F.3d 1289, 1290 (10th Cir.1996). Moreover, the party claiming appellate jurisdiction bears the burden of establishing our subject-matter jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir.2002). Here, we have subject-matter jurisdiction only if Mr. Ceballos-Martinez's notice of appeal comports with the provisions of Fed. R.App. P. 4(c)(1) or if he has subsequently filed a declaration or notarized statement that does.

The Rule states:

[1] If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution's internal mail system on or before the last day for filing. [2] If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. [3] Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Fed. R.App. P. 4(c)(1).

Mr. Ceballos-Martinez's notice of appeal lacks a declaration in compliance with 28 U.S.C. § 1746 or notarized statement setting forth the notice's date of deposit with prison officials and lacks a statement that first-class postage was pre-paid, and he has not subsequently filed such a form in compliance with Rule 4(c)(1). The jurisdictional question we must address, then, is whether Mr. Ceballos-Martinez's notice of appeal, even though it fails to include the above referenced provisions, complies with the congressional mandate that "[t]imely filing may be shown by a declaration... or notarized statement[.]" Id. (emphasis added). In other words, we must decide whether Mr. Ceballos-Martinez may prove the date of deposit and pre-payment of postage by means other than a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement.

We note that the Rules of Appellate Procedure are replete with examples of Congress using "must" to denote necessity and "may" to denote permissiveness. Compare Fed. R.App. P. 4(b)(1)(A) ("[A] defendant's notice of appeal must be filed....") (emphasis added) with Fed. R.App. P. 4(a)(5)(A) ("The district court may extend the time to file ....") (emphasis added). Given this distinction, reading the third sentence of the Fed. R.App. P. 4(c)(1) in isolation could lead one to believe that the Rule only lists two of the many ways in which a prisoner may prove timely compliance. We reject this myopic approach to statutory construction.

The principle that we must interpret statutes and rules of procedure based on their plain language, see Watt v. Alaska, 451 U.S. 259, 265, ...