U.S. v. Kimberlin

• Decision Date: 25 April 1990
• Docket Number: 88-1650,Nos. 88-1181,s. 88-1181
• Citation: 898 F.2d 1262
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brett C. KIMBERLIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1262

898 F.2d 1262

16 Fed.R.Serv.3d 147

UNITED STATES of America, Plaintiff-Appellee, v. Brett C. KIMBERLIN, Defendant-Appellant.

Nos. 88-1181, 88-1650.

United States Court of Appeals Seventh Circuit.

Submitted Jan. 31, 1990.

Decided March 28, 1990.

Rehearing and Rehearing In Banc Denied April 25, 1990.

Scott Levine, Office of the U.S. Atty., Chicago, Ill., Deborah J. Daniels, U.S. Atty., and John J. Thar, Asst. U.S. Atty., Office of the U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Brett C. Kimberlin, Memphis, Tenn., pro se.

Before POSNER, EASTERBROOK and RIPPLE, Circuit Judges.

EASTERBROOK, Circuit Judge.

In 1988 this court dismissed Brett Kimberlin's appeal for want of jurisdiction, because the notice of appeal reached the clerk's office after the time provided by Fed.R.App.P. 4. Shortly after we entered judgment, the Supreme Court held in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), that an indigent, unrepresented prisoner may file a notice of appeal by tendering it to prison officials rather than to the clerk of the district court. The Court remanded Kimberlin's case to us, --- U.S. ----, 109 S.Ct. 39, 102 L.Ed.2d 19 (1988), with instructions to reconsider in light of Houston. We must decide whether an imprisoned litigant represented by counsel receives the benefit of Houston.

The sequence is this. After the Supreme Court declined to review one of Kimberlin's many criminal convictions, United States v. Kimberlin, 805 F.2d 210 (7th Cir.1986), cert. denied, 483 U.S. 1023, 107 S.Ct. 3270, 97 L.Ed.2d 768 (1987), he petitioned the district court to reduce his sentence on the authority of the version of Fed.R.Crim.P. 35(b) that applies to pre-Guidelines cases. The court denied this motion on January 15, 1988, and sent copies of the decision to Donald V. Morano of Chicago, whom this court had appointed as Kimberlin's lawyer under the Criminal Justice Act on the initial appeal, and to Richard Kammen of Indianapolis, who had filed an appearance "for the purpose of filing and receipt of papers." Under Fed.R.App.P. 3(a) and 4(b) Kimberlin had until January 25 to file a notice of appeal. He mailed a notice from prison on January 24, but the court did not receive it until January 28. It has been docketed as No. 88-1181.

Kimberlin then asked the district court to extend the time, which a judge may do if the delay was attributable to "excusable neglect". Kimberlin maintained that Morano had not received the decision until January 23, and that he posted the notice of appeal the next morning; Kimberlin portrayed this as diligence justifying an extension of time. After observing that he usually rejects out of hand pro se motions from litigants represented by counsel, the district judge went on to say that he did not believe Kimberlin's assertion, which counsel had not backed up. Judge Dillin wrote: "defendant's unverified statement to such effect has no evidentiary value." Morano then verified that he received a copy of the order on January 23. (Kammen was silent about the date he obtained the decision.) Judge Dillin declined to reconsider, explaining: "If counsel received [the] order on January 23, 1988, he could have mailed his notice of appeal timely." Morano filed a notice of appeal, No. 88-1650, on Kimberlin's behalf to contest this decision.

First in line stands the question whether the district judge abused his discretion in declining to extend the time under Rule 4(b). Appeal No. 88-1181 suffices to present this question; it is superfluous to file notices to argue that the initial one places the case before us, so we dismiss No. 88-1650.

Someone who misses the deadline for appeal must throw himself on the mercy of the district judge, for Rule 4(b) authorizes but does not compel extensions. Lorenzen v. Employees Retirement Plan, 896 F.2d 228, 232-33 (7th Cir.1990). Although power to dispense mercy is not licence for whimsy--all judicial discretion must be exercised rationally, and without regard to forbidden characteristics such as race--appellate review is deferential. E.g., United States v. Douglas, 874 F.2d 1145, 1163 n. 31 (7th Cir.1989); Parke-Chapley Construction Co. v. Cherrington, 865 F.2d 907, 911 (7th Cir.1989). Judge Dillin exercised reasoned judgment in declining to treat the delay as "excusable neglect". Morano received notice on January 23; Kammen undoubtedly received it earlier. All Morano had to do was pick up the phone and call Kammen, telling him to trot across the street with a notice of appeal (or hand one to a messenger). Instead of calling co-counsel on hand at the seat of court, Morano tossed the ball to his client, ensuring that even a notice posted posthaste would reach the clerk close to or past the deadline. If this is "neglect", it is not "excusable".

Kimberlin is no stranger to appellate proceedings and has demonstrated his ability to file timely notices. He has averaged two appeals per year in this court over the last decade. Morano has been Kimberlin's lawyer in at least four cases since 1985 that have found their way here: United States v. Kimberlin, 805 F.2d 210 (7th Cir.1986) (direct criminal appeal); Kimberlin v. United States Department of Justice, 788 F.2d 434 (7th Cir.1986) (Privacy Act); United States v. Kimberlin, 781 F.2d 1247 (7th Cir.1985) (direct criminal appeal); United States v. Kimberlin, 776 F.2d 1344 (7th Cir.1985) (appeal of order denying a Rule 35 motion concerning an earlier conviction). Kimberlin has prosecuted other appeals, both with counsel, e.g., United States v. Kimberlin, 675 F.2d 866 (7th Cir.1982), and without, e.g., Martin and Kimberlin v. Brewer, 830 F.2d 76 (7th Cir.1987); Kimberlin v. Brewer, 825 F.2d 1157 (7th Cir.1987); Kimberlin v. Department of the Treasury, 774 F.2d 204 (7th Cir.1985). There are many other, unpublished decisions.

Morano's explanation--presented to us even though not hinted at in the district court--is that Morano wanted Kimberlin to file the notice of appeal so that there would be no chance of Morano's being on the hook as uncompensated counsel on appeal. Churlish to start with--lawyers may not play games with jurisdictional deadlines, and thus their clients' cases, to improve the prospects of payment--this excuse reflects ignorance of the law. Circuit Rule 4 provides that trial lawyers in criminal cases, whether retained or appointed, must continue as counsel on direct appeal, unless relieved by this court. Lawyers on post-conviction matters are not locked in, whether or not they file the notice of appeal. DiAngelo v. Illinois Department of Public Aid, 891 F.2d 1260 (7th Cir.1989). So no matter the source of Morano's representation in the district court (a question on which the record is opaque), and no matter whether Rule 4 commits a lawyer filing a Rule 35 motion to continue as counsel on appeal, filing the notice of appeal would not have exposed Morano to any duties beyond those to which Rule 4 applies.

One duty of every lawyer is to perfect a timely appeal at the client's request. United States v. De La Cruz, 870 F.2d 1192 1193 n. 3 (7th Cir.1989); United States v. Flowers, 789 F.2d 569 (7th Cir.1986). A reasonable mistake of law may justify (though it is unlikely to compel) an extension of time, we held in Lorenzen; a combination of putting one's own welfare ahead of the client's with an unreasonable mistake of law surely does not compel a district court to exercise favorable discretion under Rule 4(b). Although a mistake in taking a direct appeal from a conviction would be ineffective assistance of counsel, giving the defendant another opportunity to appeal without need for a formal extension of time from the district court, a blunder in prosecuting post-conviction motions under Rule 35 does not authorize a similar deferred appeal, because there is no right to effective assistance of counsel after the direct appeal. Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); see also United States v. Hill, 826 F.2d 507 (7th Cir.1987).

Kimberlin's appeal is timely only if Houston v. Lack makes it so. Rule 3(a) says that the notice of appeal must be filed with the clerk of the district court. If Houston had held that the warden of a prison is a "clerk" for purposes of Rule 3(a), then the fact that Kimberlin is represented by two lawyers would be immaterial. But the Court did not do this. It stressed that an unrepresented prisoner is unable to protect his interests except through the warden. E.g., 108 S.Ct. at 2382: "The situation of prisoners seeking to appeal without aid of counsel is unique." Indeed, the opening line of the opinion says all that is necessary to understand both the motivation of and the limitations on the Court's holding: "Pro se prisoners can file notices of appeal to the Federal Courts of Appeals only by delivering them to prison authorities for forwarding to the appropriate district court." Id. at 2381. The Court adopted, 108 S.Ct. at 2382, Justice Stewart's concurring opinion in Fallen v. United States, 378 U.S. 139, 144, 84 S.Ct. 1689, 1692, 12 L.Ed.2d 760 (1964), which drew this line explicitly: "[F]or purposes of [the rule governing appeals], a defendant incarcerated in a federal prison and acting without the aid of counsel files his notice of appeal in time, if [within the time limit] he delivers such notice to the prison authorities for forwarding to the clerk of the District Court."

Prisoners represented by counsel need not depend on their custodians. Represented prisoners are in no different position than litigants who are at liberty. Free or in confinement, litigants trust their attorneys to lodge timely notices of appeal. When the attorney defaults, the client suffers. E.g., Williams v. Hatcher, 890 F.2d 993 (7th Cir.1989). Although inmates lack one option other litigants possess--to deliver the notice by hand--this is not common for represented parties. As a practical matter, Kimberlin's options were not reduced...