United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 17, 2000 Decided January 19, 2001
Nos. 99-3065 and 99-3071
United States of America,
Appellee
v.
Scott Lee Feuver, a/k/a Scott Lee Feuer,
Appellant
Appeals from the United States District Court
for the District of Columbia
(No. 96cr00397-01)
Adam N. Steinman argued the cause as amicus curiae on
behalf of the appellant. Steven H. Goldblatt, amicus curiae
appointed by the court, was on brief.
Elizabeth H. Danello, Assistant United States Attorney,
argued the cause for the appellee. Wilma A. Lewis, United
States Attorney, and John R. Fisher, Roy W. McLeese, III,
Mary-Patrice Brown, and Jonathan M. Malis, Assistant
United States Attorneys, were on brief. Alex J. Bourelly,
Assistant United States Attorney, entered an appearance.
Before: Sentelle, Henderson and Garland, Circuit
Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: In No. 99-
3071, Scott Lee Feuver, a/k/a Scott Lee Feuer, appeals from
the district court's denial of his Section 2255 motion. The
government asserts that the court lacks jurisdiction to hear
the appeal because Feuver's notice of appeal is untimely
under Rule 4(a)(1)(B) of the Federal Rules of Appellate
Procedure. We agree and accordingly dismiss the appeal.1
I. BACKGROUND
Scott Lee Feuver was charged with six counts of bank
robbery and attempted bank robbery in violation of 18 U.S.C.
s 2113(a) and one count of attempted robbery in violation of
D.C. Code Ann. s 22-2902. On December 12, 1996 Feuver
pleaded guilty to three counts of bank robbery and on July
18, 1997 he was sentenced to 115 months of imprisonment, 3
years of supervised release and a $300 special assessment.
At the sentencing hearing, Feuver asserted that the public
defender representing him had been ineffective and sought
the appointment of new counsel. The district court refused
to appoint new counsel and also denied Feuver's motion to
withdraw his plea.
On August 4, 1997 Feuver filed in the district court a pro se
Section 2255 motion to vacate, set aside or correct the sen-
tence alleging primarily that his lawyer's inadequate perfor-
mance had deprived him of effective assistance of counsel.
On September 28, 1998 the district court denied the Section
2255 motion without holding a hearing. The district court
__________
1 In No. 99-3065, Feuver appeals the district court's denial of his
motion to set aside the order denying the Section 2255 motion. As
explained infra at note 3, we conclude that all appealable issues in
No. 99-3065 are abandoned.
order was entered on October 21, 1998.2 Feuver asserts he
never received notice of the district court's decision.
Over five months later, on March 30, 1999 Feuver filed with
the district court a "Motion for Determination of Status"
seeking information about his case. On April 6, 1999 the
district court directed the Clerk of Court to send Feuver a
copy of the September 28, 1998 order. See United States v.
Feuver, Criminal No. 96-397 (TPJ) (D.D.C. Apr. 6, 1999). On
April 27, 1999 Feuver, through his new counsel, John A.
Briley, Jr., moved to set aside and vacate the September 28,
1998 order. The district court promptly denied the motion on
April 29, 1999. See United States v. Feuver, Criminal No.
96-397 (TPJ) (D.D.C. Apr. 29, 1999). On May 10, 1999 Briley
submitted an "Application for Certificate of Appealability
__________
2 Because of its importance to the jurisdictional question, we set
forth the complete text of the district court order:
Order
Upon consideration of the motion under 28 U.S.C. s 2255 to
vacate, set aside, or correct sentence by a person in federal
custody [16] [sic] the government's opposition thereto, the
movant's pro se memoranda in support thereof, the memoranda
by counsel for movant in support thereof, the affidavit of
movant's former counsel, Assistant Federal Public Defender
Valencia R. Rainey, and the entire record herein, it is this 28th
day of September, 1998,
ORDERED, it appearing to the Court that movant has failed
to establish that his attorney provided representation that was,
"outside the wide range of professionally competent assis-
tance," Strickland v. Washington, 466 U.S. 668, 690 (1984), and
for substantially the reasons advanced in the government's
opposition, that movant's motion under 28 U.S.C. s 2255 is
denied; and it is
FURTHER ORDERED, that C.A. No. 97-1783 is dismissed
with prejudice.
Thomas Penfield Jackson /s/
U.S. District Judge
United States v. Feuver, Criminal No. 96-397 (TPJ), Civil Action
No. 97-1783 (D.D.C. Sep. 28, 1998).
from the Order Dated September 28, 1998" asking the court
to issue the certificate dated nunc pro tunc. On May 13,
1999 the district court issued a certificate of appealability
dated nunc pro tunc October 5, 1998. See United States v.
Feuver, Criminal No. 96-397 (TPJ) (D.D.C. May 13, 1999).
On May 21, 1999 Feuver, through counsel, filed a notice of
intent to appeal the September 28, 1998 order (Appeal No.
99-3071). Meanwhile, on May 12, 1999 Feuver himself filed a
notice of appeal of the April 29, 1999 order denying the April
27, 1999 motion (Appeal No. 99-3065). On June 4, 1999,
pursuant to Feuver's pro se motion, No. 99-3065 was consoli-
dated with No. 99-3071.
On July 13, 1999 the government moved to dismiss No. 99-
3071 for lack of jurisdiction and sought summary affirmance
in No. 99-3065. A motions panel of this court denied the
motion for summary affirmance, referred the motion to dis-
miss to the merits panel and appointed an amicus curiae to
argue the issues on Feuver's behalf. See United States v.
Feuver, No. 99-3065 (consolidated with No. 99-3071) (D.C.
Cir. Oct. 14, 1999). The motions panel directed the parties to
address whether Rule 58 applies to this Section 2255 proceed-
ing and, if so, whether the order entered by the district court
satisfies the requirements of Rule 58. The panel also
brought to the parties' attention Kidd v. District of Columbia
(No. 98-7075), a case then pending before the court involving
the application of Rule 58.
Feuver's pro se briefs failed to comply with the briefing
schedule and on February 17, 2000 the consolidated cases
were dismissed for failure to prosecute. See United States v.
Feuver, No. 99-3065 (consolidated with No. 99-3071) (D.C.
Cir. Feb. 17, 2000). On April 25, 2000, however, the court
vacated its February 17, 2000 order and decided that the
cases should proceed based only on the arguments presented
in the amicus brief. See United States v. Feuver, No. 99-
3065 (consolidated with No. 99-3071) (D.C. Cir. Apr. 25,
2000). The cases are now before us on the merits.3
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3 As noted supra, our April 25, 2000 order permitted the cases to
proceed only on the basis of the amicus briefs. See United States
v. Feuver, No. 99-3065 (consolidated with No. 99-3071) (D.C. Cir.
Apr. 25, 2000). Because the amicus brief advances no arguments
II. DISCUSSION
Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure
provides that "[w]hen the United States . . . is a party, the
notice of appeal may be filed by any party within 60 days
after the judgment or order appealed from is entered." Fed.
R. App. P. 4(a)(1)(B). It is well settled that the time limits
set out in the Rule are "mandatory and jurisdictional."
Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264
(1978); Moore v. South Carolina Labor Bd., 100 F.3d 162, 163
(D.C. Cir. 1996) ("In general, the time limit established by
Federal Rule of Appellate Procedure 4(a) for noting an appeal
of an order of the district court is mandatory and jurisdiction-
al."). Thus, resolution of this case turns on whether Feuver's
notice of appeal was timely.
The amicus offers two alternative theories to support the
timeliness of the appeal. First, the amicus submits that the
district court's September 28, 1998 order failed to comply
with Rule 58 of the Federal Rules of Civil Procedure and
therefore the time for filing a notice of appeal has not yet
begun to run. Second, the amicus contends that on May 13,
1999 the district court, by granting a certificate of appealabili-
ty nunc pro tunc, extended Feuver's time to file an appeal
pursuant to Rule 4(a)(6) of the Federal Rules of Appellate
Procedure. We find both arguments unpersuasive.
As noted above, Rule 4(a)(1)(B) requires that an appeal be
taken "within 60 days after the judgment or order appealed
from is entered." Fed. R. App. P. 4(a)(1)(B). Rule 4(a)(7)
explains that a "judgment or order is entered for purposes of
this Rule 4(a) when it is entered in compliance with Rules 58
and 79(a) of the Federal Rules of Civil Procedure." Fed. R.
App. P. 4(a)(7). Rule 58 in turn provides that "[e]very
judgment shall be set forth on a separate document. A
judgment is effective only when so set forth . . . ." Fed. R.
Civ. P. 58. Thus, in order to start the clock on a party's right
__________
regarding No. 99-3065, we deem all appealable issues in No. 99-
3065 abandoned. See Terry v. Reno, 101 F.3d 1412, 1415 (D.C. Cir.
1996), cert. denied, 520 U.S. 1264 (1997). Accordingly, we discuss
only the issues raised in No. 99-3071.
to appeal, the district court must enter a judgment that
complies with Rule 58.
Earlier in this litigation, there was a question whether the
requirements of Rule 58 apply to a Section 2255 proceeding.
See United States v. Feuver, No. 99-3065 (consolidated with
No. 99-3071) (D.C. Cir. Oct. 14, 1999). The government no
longer disputes the applicability of Rule 58.4 What is disput-
ed, however, is whether the order entered by the district
court here, see supra note 2, complies with the "separate
document" requirement of Rule 58.
The government argues that the district court order satis-
fies Rule 58 as the Rule was interpreted in Kidd v. District of
Columbia, 206 F.3d 35 (D.C. Cir.), reh'g en banc denied, 214
F.3d 179 (D.C. Cir. 2000), cert. denied, 69 U.S.L.W. 3281 (U.S.
Jan. 8, 2001) (No. 00-544). In Kidd, we held that an order
containing one citation to legal authority and one sentence
explaining the district court's reasoning conformed to Rule
58's "straightjacket." Id. at 39 ("Our decision in Diamond
itself endorses decisions of other circuits allowing inclusion of
at least one citation to legal authority and at least a one-
sentence explanation of the court's reasoning."); id. ("Al-
though our single-citation, single-sentence standard for Rule
58 may well seem arbitrary, . . . we think it most proper to
follow Diamond's analysis."). Here, argues the government,
the order contains only one sentence explaining the court's
reasoning and one citation and therefore complies with Kidd.
We agree.
The amicus contends that the order is distinguishable from
Kidd because it "makes legal findings regarding a claim's
substantive merits." Reply Brief of Amicus Curiae at 1.
The amicus's argument is not compelling. In Kidd, the
district court order addressed the merits of the plaintiff's
argument and concluded that the plaintiff " 'does not set forth
any arguments that would cause the Court to reject Magis-
trate Judge Robinson's Report and Recommendation.' "
__________
4 Because the government concedes the issue, we need not decide
whether compliance with Rule 58 is required in all Section 2255
proceedings.
Kidd, 206 F.3d at 38-39 (quoting from district court order).
Thus, because there is no meaningful distinction between
Kidd and this case, the district court order complies with the
separate document requirement of Rule 58 and the time for
appeal started running on October 21, 1998 when the district
court order was entered. See Kidd, 206 F.3d at 39. Conse-
quently, because the notice of appeal was filed more than 60
days after the entry of judgment, the appeal is untimely.
The amicus, relying on Rule 4(a)(6) of the Federal Rules of
Appellate Procedure, offers another argument to sidestep the
timeliness issue.5 The argument runs as follows: (1) in light
of the convention that a pro se plaintiff's motions are con-
strued liberally, Feuver's "Motion for Determination of Sta-
tus" is properly construed as a Rule 4(a)(6) motion to reopen
the time to file an appeal; (2) the district court construed the
motion in this way; (3) on May 13, 1999 the district court
issued a certificate of appealability dated nunc pro tunc
October 5, 1998, in effect granting Feuver's motion to reopen
the time to file an appeal; (4) Feuver filed an appeal on May
21, 1999 which was within the 14-day period permitted by
Rule 4(a)(6); (5) therefore, Feuver's appeal is timely. The
argument, although deft, is without merit.
Given the 180-day requirement of Rule 4(a)(6), see Fed. R.
App. P. 4(a)(6)(A), the only motion eligible for consideration
under the Rule is Feuver's "Motion for Determination of
__________
5 Rule 4(a)(6) provides:
Reopening the Time to File an Appeal. The 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, but only if
all the following conditions are satisfied:
(A) the motion is filed within 180 days after the judgment
or order is entered or within 7 days after the moving party
receives notice of the entry, whichever is earlier;
(B) the court finds that the moving party was entitled to
notice of the entry of the judgment or order sought to be
appealed but did not receive the notice from the district
court or any party within 21 days after entry; and
(C) the court finds that no party would be prejudiced.
Fed. R. App. P. 4(a)(6).
Status." Counsel's April 27, 1999 motion to set aside the
September 28, 1998 order came too late--it was filed after the
180-day period had expired. But, even under the most
charitable reading of Feuver's "Motion for Determination of
Status," we simply cannot see how the motion can be inter-
preted as a motion to reopen the time for filing an appeal.
All Feuver sought in his motion was to obtain a copy of the
order.6 The motion does not even mention the word "appeal"
from which the district court could have concluded a Rule
4(a)(6) request was before it.7 Nor does the district court's
response to the "Motion for Determination of Status" indicate
that the district court treated it as such. The district court
merely directed the Clerk of Court to send Feuver another
copy of the September 28, 1998 order. Finally, the May 13,
1999 certificate of appealability was issued in response to the
May 10, 1999 request by Briley and does not refer to Feu-
ver's Motion for Determination of Status nor does it mention
Rule 4(a)(6). In light of the foregoing, we conclude that Rule
4(a)(6) does not save Feuver's untimely appeal.
__________
6 According to the Motion for Determination of Status, on Febru-
ary 2, 1999 Feuver inquired of the Clerk of Court about his case.
In response, the Clerk forwarded Feuver an updated docket state-
ment showing that the 2255 motion had been denied with prejudice.
On March 1, 1999 Feuver again inquired of the Clerk, "requesting
an order." Appendix to Brief of Amicus Curiae in Support of
Appellant at 199. After receiving no response to the second
inquiry, Feuver filed his Motion for Determination of Status.
7 Thus, the amicus's reliance on cases in which courts have
construed pro se motions as Rule 4(a)(6) motions is unavailing.
Unlike here, in the cases cited, the pro se motion made clear that
the court was asked to decide a question about the timeliness of the
appeal. See, e.g., Sanders v. United States, 113 F.3d 184, 186 (11th
Cir. 1997) (per curiam) (construing late-filed notice of appeal as
motion to reopen under Rule 4(a)(6)); Ogden v. San Juan County,
32 F.3d 452, 454 (10th Cir. 1994) (construing pro se notice of appeal
as motion to reopen where notice of appeal proffered excuse for
lack of timeliness), cert. denied, 513 U.S. 1090 (1995).
In sum, Feuver's appeal came too late and we are without
jurisdiction to proceed further. The appeal is therefore
Dismissed.