U.S. v. Withers

• Decision Date: 03 January 2011
• Docket Number: 08–55096.,Nos. 05–56795,s. 05–56795
• Citation: 638 F.3d 1055
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Michel WITHERS, Defendant–Appellant.United States of America, Plaintiff–Appellee,v.Michel Withers, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

638 F.3d 1055

11 Cal. Daily Op. Serv. 95

2011 Daily Journal D.A.R. 147

UNITED STATES of America, Plaintiff–Appellee,

v.Michel WITHERS, Defendant–Appellant.United States of America, Plaintiff–Appellee,

v.Michel Withers, Defendant–Appellant.

Nos. 05–56795

08–55096.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 1, 2009.Filed Aug. 19, 2010.Amended Jan. 3, 2011.

Jennifer Yihyun Chou, Assistant United States Attorney, General Crimes Section, Los Angeles, CA, for the plaintiff-appellee.Verna Jean Wefald, Pasadena, CA, for the defendant-appellant.Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. Nos. CV–03–06459–R, CR–97–01085–R–1.Before: HARRY PREGERSON, JOHN T. NOONAN and RICHARD A. PAEZ, Circuit Judges.Opinion by Judge PREGERSON; Dissent by Judge NOONAN.

ORDER

In response to a petition for panel rehearing from Plaintiff–Appellee United States of America, the majority opinion filed August 19, 2010, slip op. 12207, and appearing at 618 F.3d 1008 (9th Cir.2010), is hereby amended as follows:

At slip op. at 12220, line 31 , after the sentence “Because the district court did not order the government to respond to Withers's motion, the government never raised an affirmative procedural bar defense in the district court,” add the following sentence and citation: “Further, the district court did not give notice of procedural default on its own initiative. See Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir.1998).”

With this amendment, Judges Pregerson and Paez have voted to deny the petition for panel rehearing. Judge Noonan abstains from voting on the petition.

No further petitions for panel rehearing will be entertained.

PREGERSON, Circuit Judge:

OPINION

Michel Withers (“Withers”) appeals the district court's denial of his 28 U.S.C. § 2255 habeas motion.¹ Withers also appeals the district court's decision that his notice of appeal of the district court's denial of his § 2255 motion was untimely. We have jurisdiction under 28 U.S.C. §§ 1291 and 2255(d), and, for the reasons explained below, we REVERSE.

I.

In 1998, a federal jury found Withers guilty of possession of controlled substances with intent to distribute, money laundering, engaging in a continuing criminal enterprise, and conspiracy to possess controlled substances with the intent to distribute. The district court sentenced Withers to life imprisonment plus 360 months, but eventually reduced the sentence to 365 months concurrent with 360 months.

In 2001, Withers filed a 28 U.S.C. § 2241 petition for habeas relief. The district court denied that petition, and we denied Withers's request for a certificate of appealability.

In 2003, Withers filed a 28 U.S.C. § 2255 motion for habeas relief. Because Withers had previously filed a § 2241 habeas petition, the district court treated Withers's § 2255 motion as a second or successive motion filed without permission, and denied it. Withers appealed. On appeal, the government conceded that, under Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003),² the district court erred in treating Withers's § 2255 habeas motion as a second or successive motion. Accordingly, we remanded for the district court to consider the merits of Withers's § 2255 motion.

On remand, however, the district court did not consider the merits of Withers's § 2255 motion, but instead erroneously reconsidered Withers's sentence. As a result, we again remanded for the district court to consider the merits of Withers's § 2255 motion.

On July 1, 2005, the district court filed a three-sentence order denying Withers's § 2255 motion:

This matter was remanded by USCA 9th Circuit for this court to consider the merits of appellant's 2255 motion pursuant to the Supreme Court's decision in Castro v. United States.

This court has considered the merits of appellant's 2255 motion pursuant to the Supreme Court's decision in Castro v. United States.

The motion is denied.

On November 7, 2005, Withers filed a notice of appeal. The district court concluded that Withers failed to make a “substantial showing of the denial of a constitutional right,” and, on that basis, declined to issue Withers a certificate of appealability. Undeterred, Withers continued to pursue his appeal and sought a certificate of appealability from this court.

On August 2, 2007, we granted a certificate of appealability on whether the district court erred by failing to discuss the merits of Withers's § 2255 motion or by failing to make findings of fact and conclusions of law. We also ordered a limited remand to the district court to determine whether Withers's notice of appeal was timely. We stayed consideration of the appeal until the district court's resolution of the timeliness issue.

On August 6, 2007, the district court decided that Withers's notice of appeal was untimely. Withers appealed that decision. This court consolidated that appeal with the earlier, previously stayed appeal on whether the district court erred by failing to discuss the merits of Withers's § 2255 habeas motion or by failing to make findings of fact and conclusions of law.

Accordingly, the issues that we must now decide are whether the district court erred in deciding that Withers's notice of appeal was untimely, and whether the district court erred by failing to discuss the merits of Withers's § 2255 habeas motion or by failing to make findings of fact and conclusions of law.

II.

We review de novo the timeliness of a notice of appeal. Ford v. MCI Commc'ns Corp. Health & Welfare Plan, 399 F.3d 1076, 1079 (9th Cir.2005). We review a district court's denial of a motion to reopen the time for filing an appeal for abuse of discretion. In re Stein, 197 F.3d 421, 424 (9th Cir.1999).

We review de novo the district court's denial of a § 2255 motion. United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir.2003).

III.

A. Withers's Notice of Appeal Was Timely

Under Federal Rule of Appellate Procedure 4(a)(1)(B), a notice of appeal is timely if it is filed within sixty days after the entry of the order or judgment that is the subject of the appeal. Withers filed his notice of appeal on November 7, 2005—more than sixty days after the July 1, 2005, district court order denying Withers's § 2255 motion. Federal Rule of Appellate Procedure 4(a)(6), however, allows an appellant to move to reopen the time to file an appeal if the appellant did not receive timely notice of the entry of the order or judgment from which he appeals.

Although Withers did not file a motion to reopen the time for filing an appeal, we conclude that the district court should have construed his pro se notice of appeal as a motion to reopen. For the reasons the Eleventh Circuit describes in Sanders v. United States, we hold that we must construe a pro se appellant's notice of appeal as a motion to reopen the time for filing an appeal when he alleges that he did not receive timely notice of the entry of the order or judgment from which he seeks to appeal. See Sanders v. United States, 113 F.3d 184, 187 (11th Cir.1997). This is consistent with our practice of liberally construing pro se litigants' filings as the appropriate motion or notice necessary for them to pursue their legal claims on appeal. See Turner v. Calderon, 281 F.3d 851, 864 (9th Cir.2002) (treating a pro se notice of appeal as a request for a certificate of probable cause or appealability); Brannan v. United States, 993 F.2d 709, 710 (9th Cir.1993) (construing a pro se letter as a notice of appeal). Construing Withers's notice of appeal as both a notice of appeal and a motion to reopen, the question becomes whether the district court erred in denying the motion to reopen.

Under Federal Rule of Appellate Procedure 4(a)(6), “[t]he district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered” if:

(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;

(B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and

(C) the court finds that no party would be prejudiced.

Rule 4(a)(6) gives a district court discretion in deciding whether to grant a motion to reopen. But that discretion is limited. See Arai v. Am. Bryce Ranches Inc., 316 F.3d 1066, 1070 (9th Cir.2003); Nunley v. City of Los Angeles, 52 F.3d 792, 798 (9th Cir.1995). Where a moving party makes an unchallenged assertion that he did not receive timely notice of judgment, and the other Rule 4(a)(6) conditions are not at issue, a district court errs in denying the motion to reopen based solely on the party's failure to learn independently of the entry of judgment. Nunley, 52 F.3d at 796, 798.

Here, Withers made an unchallenged assertion that he did not receive timely notice of judgment. Specifically, Withers claimed that he did not receive the district court's order denying his § 2255 habeas motion until November 4, 2005—three days before he filed his notice of appeal on November 7, 2005. Additionally, the other Rule 4(a)(6) conditions, (B) and (C), are not at issue. Condition (B) is not at issue because Withers filed his notice to reopen within fourteen days of receiving notice of the district court's order denying his § 2255 habeas motion. Condition (C) is not at issue because the government does not argue that it was prejudiced. Accordingly, the only question is whether the district court erred in declining to reopen the time to file an appeal even though Withers made an unchallenged assertion that he did not receive the notice of the entry of judgment until November 4, 2005. We conclude that the district court did so err.

By asserting that he did...