Case: 08-31222 Document: 00511148055 Page: 1 Date Filed: 06/21/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 21, 2010
No. 08-31222
Lyle W. Cayce
Clerk
ANTHONY G BAILEY,
Petitioner-Appellant
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
Before JONES, Chief Judge, and KING and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Anthony G. Bailey, Louisiana prisoner # 297843, was convicted of
attempted second degree murder and sentenced to a life term of imprisonment
as a habitual offender. Bailey filed the instant 28 U.S.C. § 2254 application to
challenge his conviction. For the reasons set forth below, we DISMISS his
appeal of the original order denying habeas relief and AFFIRM the denial of his
Rule 60(b) motion.
I. Facts and Proceedings
Because Bailey’s application appeared to be untimely, a magistrate judge
sua sponte raised the question of limitations to file the habeas challenge and
concluded that the matter was time-barred. On September 17, 2008, the district
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No. 08-31222
court adopted the magistrate judge’s report and recommendation, dismissed
Bailey’s § 2254 application as time-barred, and entered a final judgment. On
October 10, 2008, Bailey moved for an extension of time to move for a certificate
of appealability (COA).1 The magistrate judge granted the extension to
November 3, 2008. Bailey instead filed the equivalent of a Rule 60(b) motion 2
arguing that newly discovered evidence showed that his application was not time
barred. On December 16, 2008, Bailey filed a motion for a COA in this court.3
By order dated August 13, 2009, we granted a COA on the issues of whether the
district court should have raised the limitations issue sua sponte and, if so,
whether the dismissal was proper.
In the same order, we asked the parties to brief whether Bailey timely
appealed from the September 17, 2008, judgment dismissing his § 2254
application as barred by limitations. See Mosley v. Cozby, 813 F.2d 659, 660 (5th
Cir. 1987)(“This court must examine the basis of its jurisdiction on its own
motion, if necessary.”). This question requires consideration of whether Bailey’s
October 10, 2008, motion for an extension of time to file a COA can be construed
1
The document contained the caption of the district court case and was styled: “Motion
for an Extension of Time to File Motion for a Certificate of Appealability.” The body of the
motion stated in its entirety: “Anthony G. Bailey, Petitioner pro-se, herein moving for an
extention [sic] of time to file a motion for a certificate of appealability. Petitioner is
experiencing logistic difficulties with the prison administration, impeding ability to timely
submit his C.O.A. request, respectfully requesting an additional 15 days to comply herein;
otherwise he shall be denied his constitutional right of access to the court.” It is then signed
and dated with the notation “Respondant [sic] duly served.”
2
Thus, the only document filed during the period of time to appeal, even including the
district court’s extension of time to file the COA motion, which has any possibility of being
construed as a notice of appeal is the document quoted in footnote 1.
3
On March 2, 2009, Bailey filed a second Rule 60(b) motion, again challenging the
September 17, 2008, judgment dismissing his habeas application as barred by limitations.
Bailey argued that in light of Jimenez v. Quarterman, 129 S. Ct. 681 (2009), the limitations
period did not begin to run until his out-of-time appeal was final and thereafter was tolled,
rendering his § 2254 application timely filed. The district court denied the Rule 60(b) motion
for lack of jurisdiction, noting that Bailey’s appeal was pending before this court. Bailey did
not file a separate notice of appeal from the district court’s order denying his second Rule 60(b)
motion, and we do not consider it here.
2
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No. 08-31222
as the “functional equivalent” of a notice of appeal from the September 17, 2008,
judgment. See Smith v. Barry, 502 U.S. 244, 248 (1992); see also McLemore v.
Landry, 898 F.2d 996, 999 (5th Cir. 1990) (“inartfully drawn” notice of appeal
may still meet the requirements of Rule 3 of the Federal Rules of Appellate
Procedure).
II. Jurisdiction
Despite our invitation to brief the jurisdictional question, the State did not
address this issue. Nonetheless, because jurisdiction cannot be waived, we must
address this point sua sponte. See Martin v. Halliburton, 601 F.3d 381, 386 (5th
Cir. 2010).
A timely filed notice of appeal in a civil case is “mandatory and
jurisdictional.” Burnley v. City of San Antonio, 470 F.3d 189, 192 (5th Cir. 2006)
(citing F ED. R. A PP. P. 3 advisory committee’s note). Nonetheless, Federal Rule
of Appellate Procedure 3 makes clear that formality and title are not dispositive
of whether a document is a notice of appeal. See Smith, 502 U.S. at 249.
Instead, we must examine the substance of the document to determine whether
it evinces an intent to appeal and contains the identity of the party or parties
appealing, the judgment or order appealed from, and the court to which the
appeal is to be taken. Id. at 248. Where there is only one court to which appeal
could be taken, a notice is not deficient if it fails to name that court. United
States v. Cantwell, 470 F.3d 1087, 1089 (5th Cir. 2006).
We previously have held that a motion for extension of time to appeal that
does not equivocate about whether an appeal will be taken and that contains the
names of the parties appealing and the order or judgment from which appeal is
taken can suffice as the “functional equivalent” of a notice of appeal. Id.; cf. Pope
v. Holuber, 172 F.3d 867, 867 (5th Cir. 1999) (motion for extension of time to
appeal so movant could decide whether he had an appealable issue was
insufficient as a notice of appeal because it equivocated). We have also held that
a motion for a COA can serve as the “functional equivalent” of a notice of appeal.
3
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Stevens v. Heard, 674 F.2d 320, 322 (5th Cir. 1982) (addressing the filing of a
certificate of probable cause, the precursor to a certificate of appealability
request). We have not, however, addressed in a published opinion whether a
motion to extend the time to file a motion for a COA is the “functional
equivalent” of a notice of appeal.4
The Seventh Circuit recently examined this issue in Wells v. Ryker, 591
F.3d 562 (7th Cir. 2010). In that case, the court concluded that “the motion for
an extension of time to seek a certificate of appealability in this instance suffices
to serve as the functional equivalent of a notice of appeal.” Id. at 565. The
motion in that case identified the parties and the order being appealed. Id. The
omission of the court to which an appeal would be taken was excused because
the court was “obvious.” Id. The court concluded that the motion’s request for
additional time to seek a certificate of appealability “conveyed the needed
information to the warden and the State of Illinois that an appeal would be
taken to this court.” Id. Ultimately, the court decided that “the motion for
extension of time to request a certificate of appealability is an attenuated
example of a functional equivalent to a notice of appeal, and probably lies at the
outer limit of what motions may suffice under Smith v. Barry. But, we are
confident that the appellant’s motion in this case served adequate notice under
the Rule.” Id.
Even if we followed Wells in this case, however, Bailey’s document would
come up short. His motion for extension of time to file a COA application meets
only one of the three requirements of a notice of appeal: it states his name. Of
course, so does every pleading and motion a party files in the district court.
Omitted from Bailey’s motion that was present in Wells is a specific reference to
the judgment or order from which appeal was taken. See Isert v. Ford Motor Co.,
4
In the unpublished opinion of Neslo v. Cain, No. 99-31392, 2000 WL 960660, at *1
(5th Cir. June 16, 2000), we held that a motion for extension of time to file a motion for
certificate of appealability is not sufficient to serve as a notice of appeal.
4
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461 F.3d 756, 763 (6th Cir. 2006) (where appellants failed to designate the
judgment from which appeal was to be taken in their motion to extend, the court
found no timely notice: “Courts can, and should, work overtime to excuse errors
of form but they cannot simultaneously excuse errors of form and function
without assuming authority to waive compliance with the Rules altogether.”); see
also Abel v. Sullivan, 326 F. App’x 431, 433 (9th Cir. 2009)5 (where motion for
extension of time named parties and order appealed from, it was the functional
equivalent of a notice of appeal); Rinaldo v. Corbett, 256 F.3d 1276, 1279 (11th
Cir. 2001) (motion to extend time for filing a notice of appeal evinced an intent
to appeal and contained all three of Rule 3's requirements and, therefore, was
a functional equivalent of a notice of appeal). At the time Bailey filed his notice,
the district court had entered four orders and a final judgment. If we simply
infer that Bailey meant to appeal the final judgment, we have essentially
reduced the three requirements of Rule 3 to one: naming the party. We do not
read Smith so broadly. We conclude that Bailey’s motion here did not meet the
requirement of filing a timely notice of appeal and his motion to extend is not a
“functional equivalent,” such that his appeal of the September 17, 2008,
judgment is untimely, leaving only the appeal of the Rule 60(b) denial properly
before us.
III. Appeal from the Denial of the First Rule 60(b) Motion
A notice of appeal from the denial of a Rule 60(b) motion in a civil
proceeding does not bring up the underlying judgment for review. Latham v.
Wells Fargo Bank, N.A., 987 F.2d 1199, 1203-04 (5th Cir. 1993). We review the
denial of a Rule 60(b) motion for abuse of discretion. Thermacor Process, L.P. v.
BASF Corp., 567 F.3d 736, 744 (5th Cir. 2009). Bailey argued that the district
court erred in concluding that his § 2254 application was time-barred without
5
Unpublished decisions are not precedent; this case is cited as an exemplar of how the
9th Circuit handled a related situation.
5
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considering the transcript of a 2002 hearing that was only transcribed after the
court’s ruling. Although styled as a Rule 60(b)(6)6 motion, Bailey’s motion is
premised on “newly discovered evidence,” which is addressed by Rule 60(b)(2).
We therefore consider his arguments under that rule. See Liljeberg v. Health
Servs. Acquisition Corp., 486 U.S. 847, 863 n.11 (1988)(noting that clause (6) is
mutually exclusive of clauses (1) through (5).
To obtain relief under Rule 60(b)(2), a movant must show that “with
reasonable diligence” this evidence could not have been discovered sooner. F ED.
R. C IV. P. 60(b)(2). Not only has Bailey not made this showing, but also he has
tacitly admitted he could have provided this evidence sooner. In his brief to this
court, Bailey states that he ordered the transcription after the magistrate judge
issued the report and recommendation. He makes no attempt to show that he
could not have obtained this transcription sooner if it were necessary to make
his case before the district court. Accordingly, we conclude that the district court
did not abuse its discretion in denying Bailey’s Rule 60(b)motion.
IV. Conclusion
For the foregoing reasons, we DISMISS for want of jurisdiction Bailey’s
appeal from the September 17, 2008, order; we AFFIRM the November 17, 2008,
order denying the Rule 60(b) motion.
6
Under Rule 60(b)(6), relief may be granted from a final judgment on “any other
reason that justifies relief.”
6