In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2243
MICHAEL CARTER,
Petitioner‐Appellant,
v.
MARC HODGE,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 3783 — Harry D. Leinenweber, Judge.
____________________
SUBMITTED JULY 19, 2013 — DECIDED AUGUST 8, 2013
____________________
Before POSNER, ROVNER, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The routine screening of appeals
that the court’s staff conducts to make sure an appeal is
within this court’s appellate jurisdiction has flagged a signif‐
icant issue of timeliness.
Michael Carter is an Illinois prison inmate whose petition
for habeas corpus under 28 U.S.C. § 2254, originally filed
elsewhere, was transferred to the Northern District of Illinois
in June of 2010. On December 5 of the following year, having
2 No. 13‐2243
heard nothing about the status of his case, Carter inquired of
the clerk’s office. The office responded: “Status request: As
of this date, the Court has taken no further action on the re‐
quested case. When an order is entered, you will be prompt‐
ly notified by mail.” The response was incorrect; the district
court had denied Carter’s petition for habeas corpus on Feb‐
ruary 10, 2011, following the issuance of an opinion by the
district judge the previous day. Carter v. Ryker, No. 10 C
3783, 2011 WL 589687 (N.D. Ill. Feb. 9, 2011). The opinion
was not sent or otherwise made available to Carter.
After hearing nothing further from the district court for
more than a year, Carter again wrote the clerk and this time
was correctly informed by a letter that he received on March
22 of this year that his petition had been denied two years
ago, in February 2011. On April 16, fewer than 30 days after
receiving the information from the district court clerk, he
filed a notice of appeal and a petition for a certificate of ap‐
pealability. The district court did not docket his papers until
May 31. But April 16, the date on which Carter submitted
them to the prison authorities for mailing, is the official fil‐
ing date of his notice of appeal. Houston v. Lack, 487 U.S. 266,
276 (1988); Fed. R. App. P. 4(c)(1).
Rule 4(a)(6)(7) of the appellate rules permits a district
court to reopen the time to appeal if as in this case the liti‐
gant did not receive, within 21 days of the judgment that he
wants to appeal from, notice of that judgment. But the liti‐
gant must request this relief no later than 180 days after the
judgment is rendered or 14 days after he receives notice of
the judgment under Fed. R. Civ. P. 77(d) (which requires
service on the litigant), whichever comes first. Fed. R. App.
P. 4(a)(6)(B); see also 28 U.S.C. § 2107(c). Because the district
No. 13‐2243 3
judge failed to set out his judgment denying the petition for
habeas corpus in a separate document as required by Fed. R.
Civ. P. 58(a) (despite our repeated reminders that district
courts must comply with the rule, see, e.g., Rush University
Medical Center v. Leavitt, 535 F.3d 735, 737 (7th Cir. 2008); Otis
v. City of Chicago, 29 F.3d 1159, 1163 (7th Cir. 1994) (en banc);
Armstrong v. Ahitow, 36 F.3d 574, 575 (7th Cir. 1994) (per cu‐
riam)), Rule 58(c)(2)(B) (and also Fed. R. App. P.
4(a)(7)(A)(ii)) deemed the judgment to have been rendered
150 days after the denial of the petition was entered on the
district court’s docket: hence on July 11, 2011.
Analysis is slightly complicated by the fact that the judge
did promptly make a minute entry of his dismissal of
Carter’s petition for habeas corpus on the district court‘s
docket. We have suggested that such a notation might satis‐
fy Rule 58. Nocula v. UGS Corp., 520 F.3d 719, 724 (7th Cir.
2008); Properties Unlimited, Inc. Realtors v. Cendant Mobility
Services, 384 F.3d 917, 919–20 (7th Cir. 2004). Other courts
have disagreed. See, e.g., Transit Management of Southeast
Louisiana, Inc. v. Group Insurance Administration, Inc., 226 F.3d
376, 382 (5th Cir. 2000); Yourish v. California Amplifier, 191
F.3d 983, 987–88 (9th Cir. 1999). No matter; as in Perry v.
Sheet Metal Workers’ Local No. 73 Pension Fund, 585 F.3d 358,
361–62 (7th Cir. 2009), the appellee has conceded in his ju‐
risdictional memorandum that no Rule 58(a) judgment was
entered.
The 180‐day limit on requesting the district court to reo‐
pen the time in which to appeal (in this case 180 days after
the 150 days after the district court’s decision) was reached
on January 7, 2012, at a time when Carter had been led to be‐
lieve, just a month earlier, that his petition for habeas corpus
4 No. 13‐2243
was still pending. Had he received timely notice of the deni‐
al of his petition, he could have sought under Rule 4(a)(6) of
the appellate rules to reopen the time within which to appeal
that denial. He never did move to reopen; and even if we
treated his April 16 filings as such a motion, the motion
would have been untimely.
But Carter is saved by equitable tolling—“the judge‐
made doctrine, well established in federal common law, that
excuses a[n un]timely filing when the plaintiff could not, de‐
spite the exercise of reasonable diligence, have discovered all
the information he needed in order to be able to file his claim
on time,” Taliani v. Chrans, 189 F.3d 597 (7th Cir. 1999), pro‐
vided that he acted promptly once he finally got the infor‐
mation. Yuan Gao v. Mukasey, 519 F.3d 376, 379 (7th Cir.
2008). Carter meets all these conditions. But we must decide
whether the doctrine is applicable.
It isn’t applicable to jurisdictional deadlines, which dead‐
lines for filing notices of appeal have been held to be. Bowles
v. Russell, 551 U.S. 205, 214 (2007); Socha v. Pollard, 621 F.3d
667, 670 (7th Cir. 2010). That exception is in tension with the
prevailing modern view that, as we put it in In re IFC Credit
Corp., 663 F.3d 315, 319 (7th Cir. 2011), federal subject‐matter
jurisdiction is “about the competence of the tribunal—
‘competence’ in the sense of legal empowerment to decide a
case—rather than about the mistakes that litigants and some‐
times judges make in a case that is within the tribunal’s
competence.” See Kontrick v. Ryan, 540 U.S. 443, 454–55
(2004); Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 171–74
(2010) (concurring opinion); Wisconsin Valley Improvement Co.
v. United States, 569 F.3d 331, 333 (7th Cir. 2009); Moore v. Ol‐
son, 368 F.3d 757, 759–60 (7th Cir. 2004); Menominee Indian
No. 13‐2243 5
Tribe v. United States, 614 F.3d 519, 523–24 (D.C. Cir. 2010).
Obviously the federal courts are legally empowered to de‐
cide cases brought under 28 U.S.C. § 2254. Statutes of limita‐
tions are statutory deadlines for filing suits, yet equitable
tolling is allowed to postpone those deadlines. See, e.g., Hol‐
land v. Florida, 130 S. Ct. 2549 (2010). Why should deadlines
for appealing be treated differently?
But they are, and we are bound. But Rule 58(c)(2)(B)—the
subdivision of Rule 58 that provides that when the district
court fails to comply with Rule 58(a) the judgment is
deemed entered 150 days after the court’s decision—does
not set an appeal deadline. It has significance for the time
within which to appeal, but in itself the rule is just about the
dating of the judgment, as further suggested by the Supreme
Court’s decision in Bankers Trust Co. v. Mallis, 435 U.S. 381
(1978) (per curiam). That decision holds that the parties to an
appeal can waive Rule 58’s separate‐judgment requirement.
A jurisdictional rule is not waivable.
Before 2002, when both Rule 58 and appellate Rule
4(a)(7) were amended to add the 150‐day provision, a losing
party had forever to appeal if the district court never entered
a Rule 58 judgment. See United States v. Indrelunas, 411 U.S.
216 (1973) (per curiam); In re Kilgus, 811 F.2d 1112, 1117 (7th
Cir. 1987); Quinn v. Haynes, 234 F.3d 837, 843 (4th Cir. 2000).
Forever is too long. The Committee Notes to the 2002
amendment to appellate Rule 4(a)(7) describes the 150‐day
provision as a compromise between the interest in finality
and the protection of a litigant’s right to appeal: “150 days of
inactivity … signals to litigants that the court is done with
their case.” But it couldn’t signal that to Carter, because the
6 No. 13‐2243
office of the clerk of the district court told him that his case
was still under consideration by the judge. It misled him.
There is no reason not to toll the 150‐day provision until
March 22, 2013, the day Carter finally learned that the dis‐
trict judge had decided the case against him. He could not,
considering his situation as a prisoner without legal sophis‐
tication or a lawyer, have learned this essential information
earlier. Having been told back in December 2011 that his pe‐
tition was pending and—as important—that he’d be in‐
formed when the judge ruled on the petition, Carter had no
reason to think that he would have to make periodic inquir‐
ies of the clerk’s office concerning the status of his case in
order to protect his right to appeal.
His situation might even be equated to that of the litigant
when on the final day for filing his notice of appeal a bliz‐
zard closes the court, preventing him from filing. In that sit‐
uation the deadline is extended to the reopening of the court.
Fed. R. App. P. 26(a)(3) and 2009 Advisory Committee Notes
thereto. Though bad weather that forces the closing of the
court clerk’s office is the canonical example of circumstances
that preclude appealing within the specified time, the Com‐
mittee Notes are explicit that the rule (which does not men‐
tion weather) is not so limited. The extension is only to “the
first accessible day.” Fed. R. App. P. 26(a)(3)(A), (B), but for
Carter—a prisoner litigating pro se and deceived by the
clerk regarding the deadline for appealing—the first day on
which the district court was accessible for the filing of his
notice of appeal was, so far as appears, April 16, 2013.
It’s true he wasn’t physically prevented from filing the
notice of appeal earlier. But the clerk’s office was “inaccessi‐
ble” to him, Fed. R. App. P. 26(a)(3), in the same way that
No. 13‐2243 7
War and Peace in the original Russian is inaccessible to some‐
one who can’t read Russian, though he might own a Russian
edition and therefore be able to thumb the pages, staring
dumbly at the inscrutable Cyrillic script. Equally a litigant
could “access” the storm‐shut clerk’s office by slipping his
notice of appeal under the door or though the mail slot, or,
in desperation, wrapping it around a stone and flinging the
stone through the office window.
But we need not commit ourselves to this doubtless ra‐
ther extravagant reading of Rule 26; it is enough, to per‐
suade us that the appeal is timely, that the 150‐day judg‐
ment‐deeming rule can be and has been equitably tolled. We
therefore decline to dismiss Carter’s appeal at this juncture.
Whether he is entitled to a certificate of appealability will be
decided separately.