Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
2-8-2006
Rivera v. Comm PA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2072
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2072
ANGEL RIVERA,
Appellant
v.
COMMONWEALTH OF PENNSYLVANIA;
ATTORNEY GENERAL OF PENNSYLVANIA;
UNITED STATES ATTORNEY FOR THE MIDDLE
DISTRICT OF PA
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-cv-08399)
District Judge: The Honorable Charles R. Weiner
Submitted Under Third Circuit LAR 34.1(a)
January 13, 2006
Before: BARRY, AMBRO * and ALDISERT, Circuit Judges
*
Judge Ambro does not join in this opinion. He would have us remand this appeal to the
District Court for further proceedings because he believes that the August 11, 2003 letter,
when considered with the greater leeway we are to offer pro se litigants, should have been
construed by the Court as a motion to reopen its judgment. On remand, whether to grant
Rivera’s Rule 4(a)(6) motion to reopen would be within the sound discretion of the
District Court. See Arai v. American Bryce Ranches Inc., 315 F.3d 1066, 1069 (9th Cir.
2003). Upon review of the record, however, Judge Ambro believes that Rivera is likely
(Filed February 8, 2006)
OPINION OF THE COURT
ALDISERT, Circuit Judge.
Appellant Angel Rivera appeals from a denial of his petition for a writ of habeas
corpus relating to his Pennsylvania state court convictions for robbery, attempted
homicide and conspiracy. Rivera filed a petition for relief under 28 U.S.C. § 2254 in the
United States District Court for the Eastern District of Pennsylvania. The District Court
restricted its analysis to Rivera’s Brady claims, which had been exhausted in the state
courts. The court then ruled against Rivera on those claims, finding that the state courts’
adjudication of them was “not contrary to clearly established Supreme Court precedent.”
Nevertheless, in its Order, the court granted Rivera a certificate of appealability as to
those Brady claims, which Rivera now raises before us. We cannot reach the merits of
his appeal, however, because we perceive that a problem of jurisdiction in this Court
exists. Accordingly, we will dismiss the appeal.
I.
to have that motion granted because it appears he (1) satisfies the requirements of Rule
4(a)(6) and (2) raises potentially meritorious issues in his habeas petition our Court
should address (indeed, one of which the District Court granted a Certificate of
Appealability)—specifically, whether the prosecution committed a Brady violation by,
inter alia, failing to disclose the note found in Santos’ apartment.
2
Because the parties are familiar with the facts and the proceedings in the District
Court, we will only recite those facts necessary to the discussion.
“The timeliness of an appeal is a mandatory jurisdictional prerequisite.” Poole v.
Fam. Ct. of New Castle County, 368 F.3d 263, 264 (3d Cir. 2004). In a habeas
proceeding, a petitioner cannot take an appeal unless a district court first issues a
certificate of appealability under 28 U.S.C. § 2253(c). Rule 22, Federal Rules of
Appellate Procedure. In its Order denying habeas relief dated April 16, 2003, the District
Court issued a certificate of appealability limited to Rivera’s Brady claims. Rivera
accordingly had 30 days from that date to file a notice of appeal. See Rule 4(a)(1)(A),
Federal Rules of Appellate Procedure. That deadline passed with no such notice being
filed.
Because Rivera did not file a timely notice of appeal, we must then examine
whether he filed a proper motion to reopen, which would allow him to later file an
untimely notice of appeal. See Rule 4(a)(6), Federal Rules of Appellate Procedure.2 The
2
Rule 4(a)(6) states:
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 court finds that the moving party did not receive notice under
Federal Rule of Civil Procedure 77(d) of the entry of the judgment or
order sought to be appealed within 21 days after entry;
(B) the motion is filed within 180 days after the judgment or order is
entered or within 7 days after the moving party receives notice under
3
provisions of Rule 4(a)(6) are “mandatory and jurisdictional” and we “are required to
dismiss untimely appeals sua sponte.” Marcangelo v. Boardwalk Regency, 47 F.3d 88, 91
(3d Cir. 1995) (citations and internal quotations omitted). Rivera contends that he did not
receive notice of the entry of the District Court's judgment until August 6, 2003.3 By this
time, in order to be able to file an untimely notice of appeal, Rivera was required to file a
motion to reopen with the District Court by August 13, 2003.4 See Rule 4(a)(6)(B),
Federal Rules of Appellate Procedure (stating that a motion to reopen must be filed within
seven days of the party receiving notice of the entry of judgment).
The only document that the court received from Rivera that could arguably be
Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier;
and
(C) the court finds that no party would be prejudiced.
3
The Docket Sheet that Rivera allegedly received on August 6, 2003, stated:
MEMORANDUM AND OPINION AND ORDER THAT THE
UNEXHAUSTED CLAIMS CONTAINED IN THE PETITION OF
PETITIONER FOR WRIT OF HABEAS COPRUS [sic] ARE DISMISSED
WITHOUT PREJUDICE. THE PETITION IS DENIED IN ALL OTHER
REGARDS. A CERTIFICATE OF APPEALABILITY IS GRANTED
LIMITED TO THE EXHAUSTED BRADY CLAIMS ADJUDICATED
HEREIN. SIGNED BY JUDGE CHARLES R. WEINER ON 4/16/03.
ENTERED AND COPIES MAILED. (lvj,) (Entered: 04/16/2003)
4
Ordinarily, the issue of when notice was received is a factual question to be found by
the District Court, see Nunley v. City of Los Angeles, 52 F.3d 792, 796 (9th Cir. 1995),
but for the purposes of our discussion we will accept as true Rivera’s averment that he did
not receive notice until August 6, 2003.
4
construed as a motion to reopen was a letter dated August 11, 2003 (hereinafter “the
August letter”) that stated that he only recently received notice of the entry of judgment
and requested information on how to proceed.5 Misreading Rule 4(a)(6), Rivera now
contends that this letter is a notice of appeal. Because a notice of appeal filed on August
11, 2003, would be untimely, see Rule 4(a)(1)(A), Federal Rules of Appellate Procedure
(stating that a notice of appeal must be filed within 30 days of the entry of judgment), the
real question is not whether the August letter constitutes a notice of appeal, but whether it
is a proper motion to reopen under Rule 4(a)(6).6 See Poole, 368 F.3d at 264 (focusing
5
The August letter is as follows:
Dear Clerk of Court:
First of all, I wish you in GOD’s loving hands, and in the best of health.
I just received the copy of my docket sheet, that I requested. Thank you so
much . . . But to my surprise, I noticed that a “MEMORANDUM AND
OPINION AND ORDER” was entered on “April 16, 2003”. In which I never
received a copy of said “Memorandum and Opinion and Order”. I truly
thought, that I was still waiting on a decision. Can you please send me a
complete copy, of said “Memorandum And Opinion And Ordered” entered on
04/16/03, and as to how I should proceed now. I now leave everything in
GOD’s merciful hands, and yours. Awaiting on your prompt reply, and
thanking you in advance, for all your help and cooperation, in this grave and
urgent matter.
Respectfully,
/s/ Mr. Angel Rivera
6
Rivera also wrote letters on September 19, 2003, and November 16, 2003, in which he
similarly expressed his surprise in the recent entry of judgment and requested a copy of
the Memorandum and Order. We do not address them here because even if those letters
could be construed as motions to reopen, they were untimely. Both letters were submitted
more than seven days after Rivera received notice of the entry of judgment. See Rule
4(a)(6)(B), Federal Rules of Appellate Procedure.
5
upon whether a motion to reopen was filed when all that was received was an untimely
notice of appeal).
Having examined the August letter, we conclude as a matter of law that it does not
constitute a motion to reopen. We make this decision mindful that we are to grant pro
se litigants “greater leeway where they have not followed the technical rules of pleading
and procedure.” See Tabron v. Grace, 6 F.3d 147, 153 n.2 (3d Cir. 1993). We also
acknowledge that captions and titles that a pro se litigant places upon filings are
irrelevant; rather, it is the function and substance of the documents that are determinative.
Lewis v. Att’y Gen. of U.S., 878 F.2d 714, 722 n.20 (3d Cir. 1989); see also Torres v.
Oakland Scavenger Co., 487 U.S. 312, 316-317 (1988) (examining whether the pro se
appellant’s filing accomplished the “functional equivalent of what the rule requires”).
Nonetheless, a writing must contain some indicia from which a district court can conclude
that a Rule 4(a)(6) motion to reopen is before it. See Campos v. LeFevre, 825 F.2d 671,
676 (2d Cir. 1987) (“[N]o particular form of words is necessary to render a filing a
‘motion.’ Any submission signed by a party that may fairly be read as a request to the
district court to exercise its discretionary powers to permit a late appeal should suffice.”);
see also U.S. v. Feuver, 236 F.3d 725, 729 (D.C. Cir. 2001) (concluding ultimately that
there was no such indicia in litigant’s pro se “Motion for Determination of Status”).
Accordingly, notwithstanding the leniency that we give pro se litigants’ filings, the
August letter is not a motion to reopen. See Poole, 368 F.3d at 268 (“Appellate Rule
6
4(a)(6) requires a motion to reopen.”). There are no indicia in the August letter from
which the District Court could have concluded that a Rule 4(a)(6) motion to reopen was
before it. We therefore lack jurisdiction over this appeal.
III.
We have considered all contentions presented by the parties and conclude that no
further discussion is necessary. We will dismiss the appeal for lack of jurisdiction.