Willis v. Newsome
| Decision Date | 26 November 1984 |
| Docket Number | No. 83-8842,83-8842 |
| Parties | Charles E. WILLIS, Petitioner-Appellant, v. Lansome NEWSOME, Warden, Respondent-Appellee. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Northern District of Georgia.
ON PETITION FOR REHEARING
Before HATCHETT, ANDERSON and CLARK, Circuit Judges.
Willis petitions for rehearing from the panel's dismissal of his appeal for failure to file a timely notice of appeal. On the record initially submitted with the appeal, it appeared that Willis' notice of appeal was not filed until September 23, 1983, thirty-one days after the entry of judgment below. In an affidavit accompanying the instant petition, Willis' attorney now asserts that the notice of appeal, which was received by the district court on September 23, was mailed on September 21 after a conversation with the district court clerk, in which the clerk informed counsel that according to local custom, the notice of appeal would be stamped September 21, 1983. At the time this conversation took place, Willis still could have filed a timely notice of appeal by hand delivery. In addition, if Willis had been told by the district court's filing clerk that the notice had not been dated as filed on the 21st, and therefore was untimely, he had until October 21, 1983, to file a motion to extend.
Although the mailbox rule does not apply to notices of appeal, see Barksdale v. Blackburn, 647 F.2d 630 (5th Cir., 1981), rev'd on other grounds, 454 U.S. 1118, 102 S.Ct. 962, 71 L.Ed.2d 106 (1981), modified, 670 F.2d 22 (5th Cir.1982), and would not be an appropriate custom for the district court's filing procedure, the instant case presents a somewhat different issue. If Willis was indeed relying on the district court's representation that his notice of appeal would be timely if mailed on September 21, and was thus lulled into failing to arrange for an alternative method of filing or moving for an extension of time to file, the appeal should not have been dismissed as untimely. Courts will permit an appellant to maintain an otherwise untimely appeal in unique circumstances in which the appellant reasonably and in good faith relied upon judicial action that indicated to the appellant that his assertion of his right to appeal would be timely, so long as the judicial action occurred prior to the expiration of the official time period such that the appellant could have given timely notice had he not been lulled into inactivity. See Thompson v. Immigration and Naturalization Service, 375...
To continue reading
Request your trial
-
Houghton v. County Com'rs of Kent County
...time period such that the appellant could have given timely notice had he not been lulled into inactivity.' " (Quoting Willis v. Newsome, 747 F.2d 605, 606 (11th Cir.1984)). See, e.g., Feister v. Turner, supra, 783 F.2d 1474; Ashby Enterprises v. Weitzman, Dym, EA, 780 F.2d 1043, 1045 n. 2 ......
-
Center for Nuclear Responsibility, Inc. v. U.S. Nuclear Regulatory Com'n
...of excusable neglect, when pro se appellant could have filed a motion for extension of time, misled appellant); Willis v. Newsome, 747 F.2d 605, 606 (11th Cir.1984) (untimely appeal allowed where litigant relied on express representation by court clerk that notice of appeal would be stamped......
-
Barry v. Bowen
...for timely filing had not elapsed at the time of the district court's action. See United Artists, 771 F.2d at 1269; Willis v. Newsome, 747 F.2d 605, 606 (11th Cir.1984), cert. denied, --- U.S. ----, 106 S.Ct. 1273, 89 L.Ed.2d 581 (1986); St. Marys Hospital, 753 F.2d at 1365-66. In this case......
-
United Artists Corp. v. La Cage Aux Folles, Inc.
...doctrine applicable to permit appeals that were otherwise untimely under Rule 4(a), Fed.R.App.P. See Willis v. Newsome, 747 F.2d 605, 606-07 (11th Cir.1984) (per curiam); Aviation Enterprises, Inc. v. Orr, 716 F.2d 1403, 1406 n. 25 (D.C.Cir.1983) (per curiam). The court in Willis succinctly......
-
Appellate Practice and Procedure - William M. Droze and Jeri N. Sute
...the Federal Rules of Appellate Procedure. 80. 191 F.3d 1324 (11th Cir. 1999). 81. Id. at 1325. 82. Id. at 1327 (quoting Willis v. Newsome, 747 F.2d 605, 606 (11th Cir. 1984)). 83. Id. (citing Pinion, 928 F.2d at 1531). 84. Id. at 1329. 85. 175 F.3d 889 (11th Cir. 1999). 86. Id. at 893. To o......