Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-12-2006
Potter v. State of NJ
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2777
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Recommended Citation
"Potter v. State of NJ" (2006). 2006 Decisions. Paper 1273.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1273
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APS-174 UNREPORTED - NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-2777
________________
ERIC POTTER,
Appellant
v.
STATE OF NEW JERSEY
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D. N.J. Civ. No. 03-cv-005940)
District Judge: Honorable Garrett E. Brown Jr.
_______________________________________
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
March 23, 2006
BEFORE: SLOVITER, McKEE and FISHER, CIRCUIT JUDGES
(Filed: April 12, 2006)
_______________________
OPINION
_______________________
PER CURIAM
In December 2003, Appellant, Eric Potter, the defendant in a pending New Jersey
criminal case, filed a complaint in District Court seeking relief from the state appellate
courts’ denial of leave to file an interlocutory appeal with respect to the trial court’s
denial of Potter’s suppression motion. On July 12, 2004, the District Court granted IFP
and dismissed the complaint sua sponte, concluding that it did not have subject matter
jurisdiction over the pending state criminal charges. The District Court denied Potter’s
untimely reconsideration motion on November 16, 2004. Potter appealed. We dismissed
the appeal as untimely, see Potter v. State of New Jersey, C.A. No. 04-4741 (3d Cir. April
11, 2005), and denied Potter’s petition for rehearing on April 21, 2005.
Meanwhile, on December 6, 2004, Potter filed in District Court a document
entitled “Notice of Motion to Appeal a District Court Decision,” that contained several
motions. The District Court construed the entire filing as a post-judgment motion and
denied the motion on April 28, 2005. Potter appealed.1 On July 26, 2005, the appeal was
procedurally terminated for failure to pay fees. Potter has filed a motion to re-open the
appeal.
I.
First, we turn to Potter’s motion to re-open the appeal. Potter claims that he has
paid the appellate filing and docketing fee in full. The record indicates that Potter paid
the remainder of the fee (five dollars) in September 2005. Upon good cause shown, the
motion to re-open is granted. See L.A.R. 107.2(a).
1
Potter’s appeal is timely filed. Potter had thirty days, or until May 28, 2005, to file a
timely appeal from the order denying post-judgment relief. He submitted a document to this
Court entitled “petition for writ of mandamus,” which the Clerk forwarded to the District
Court on May 27, 2005, to be treated as a notice of appeal. The District Court docketed the
notice of appeal as having been filed on May 26, 2005, two days before the deadline.
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II.
We have jurisdiction to consider this appeal under 28 U.S.C. §§ 1291. We review
the District Court’s denial of Potter’s post-judgment motion for abuse of discretion. See
Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 653 (3d Cir. 1998). In
February 2006, the parties were notified that the Court sua sponte may take summary
action on the appeal if it appears that no substantial question is presented or that
subsequent precedent or change in circumstances warrants such action. See Third Circuit
LAR 27.4 and I.O.P. 10.6. Potter has responded and the matter is ready for disposition.
We will summarily affirm.
When Potter filed the original complaint, his criminal case was still pending in
state court and he had not been incarcerated. By the time Potter filed his post-judgment
“motion to appeal,” in December 2004, however, he had been convicted and sentenced.
He argued that his incarceration gave the District Court jurisdiction to consider the
constitutional claims he had raised in the Rule 59(e) motion filed in August 2004. The
District Court did not abuse its discretion in ruling that Potter failed to demonstrate any
basis for granting post-judgment relief. First, the District Court lacked subject matter
jurisdiction over the appeal of a state court conviction. Moreover, the District Court
properly would have declined to treat Potter’s motion as seeking § 2254 habeas relief,
because he had not exhausted available state court remedies through direct appeal or
application for post-conviction relief.
Accordingly, because no substantial question is presented by this appeal, we will
3
summarily affirm the order of the District Court.
4