PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-9000
___________
JEROME MARSHALL,
Appellant
v.
COMMISSIONER PENNSYLVANIA DEPARTMENT
OF CORRECTIONS; SUPERINTENDENT GREENE
SCI; DISTRICT ATTORNEY PHILADELPHIA;
ATTORNEY GENERAL PENNSYLVANIA;
SECRETARY DEPARTMENT OF CORRECTIONS;
WILLIAM S. STICKMAN
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-03-cv-03308)
District Judge: Honorable James Knoll Gardner
____________________________________
Submitted By the Clerk for Possible
Dismissal Due to a Jurisdictional Defect
July 13, 2016
Before: SMITH, HARDIMAN, and RESTREPO,
Circuit Judges
(Opinion filed: October 25, 2016)
Maureen C. Coggins, Esq.
523 West Linden Street
Allentown, PA 18101
Christian J. Hoey, Esq.
Rubino & Hoey
50 Darby Road
Paoli, PA 19301
Counsel for Appellant
Susan E. Affronti, Esq.
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107
Counsel for Appellees
___________
OPINION OF THE COURT
___________
Honorable D. Brooks Smith, United States Circuit Judge for
the Third Circuit, assumed Chief Judge status on October 1,
2016.
2
PER CURIAM
Jerome Marshall is currently pursuing a petition for a
writ of habeas corpus in the District Court. Marshall is
represented by counsel, but he filed a motion to remove
counsel and to proceed pro se. He later filed a notice of
appeal challenging the District Court’s purported denial of
that motion. The District Court, however, had not yet entered
or announced any decision on that motion. To the contrary,
the District Court had expressly advised Marshall that it had
not made a decision and would do so only later. Thus, when
Marshall filed his notice of appeal, the District Court had not
yet entered or announced any decision that could be brought
before us for appellate review. The District Court later
denied Marshall’s motion.
The question presented by these circumstances is
whether Marshall’s notice of appeal has ripened now that the
District Court has issued its decision. We conclude that it has
not. Consequently, we will dismiss this appeal for lack of
jurisdiction.
I. Background
Marshall was sentenced to death in Pennsylvania in
1984, and he has been pursuing a federal habeas petition since
2003. Marshall initially filed his petition through the Federal
Community Defender. Many years later, however, Marshall
became dissatisfied with the Community Defender’s services
and filed a motion for appointment of new counsel. The
District Court granted that motion and appointed Christian
Hoey and Maureen Coggins to represent Marshall.
3
Marshall soon became dissatisfied with their services
as well, apparently because they would not withdraw the
habeas petition filed by the Community Defender and assert
different claims. Marshall eventually filed pro se a document
titled “Petitioner’s Pro Se Omnibus Motion.” (ECF No. 102.)
In that document, Marshall requested an order: (1) removing
his new counsel; (2) striking the habeas petition and all other
documents filed by the Community Defender; (3) allowing
the filing of a new habeas petition “nunc pro tunc”; and (4)
remanding for a new hearing “nunc pro tunc” in state court.
It appears that Marshall sought to proceed pro se in order to
dismiss all of his counseled claims and assert different claims
that may be both procedurally defaulted and untimely (though
we express no opinion on that issue).
By order entered April 1, 2015, the District Court
scheduled a hearing on Marshall’s request to remove counsel
but dismissed Marshall’s last three requests without prejudice
because he remained represented by counsel at the time.
(ECF No. 101.) Shortly thereafter, counsel filed a motion
seeking a determination of Marshall’s mental competence.
Marshall responded with a supplemental motion to remove
counsel. (ECF No. 113.) In light of these developments, two
issues remained to be determined by the District Court—
whether Marshall was mentally competent, and whether to
1
remove Hoey and Coggins as counsel and permit Marshall to
proceed pro se.
The District Court held three hearings on these issues
before Marshall ultimately consented to a psychiatric
4
evaluation. Dr. Francis Dattilio conducted the evaluation and
issued a report opining that Marshall is not competent either
to assist his counsel or to proceed pro se. The District Court
then held a fourth hearing on February 17, 2016. At the
hearing, Dr. Dattilio testified consistently with his report that
Marshall is not competent. The District Court then took the
issues of Marshall’s competence and the removal of counsel
under advisement. In doing so, the District Court made it
very clear at the conclusion of the hearing that it had not yet
decided those issues:
There are two things that need to be decided . . .
first, whether or not Mr. Marshall is competent
and, if not, in what ways is he not competent.
And then, second, whether or not I’m going to
grant his request to discharge his current
counsel. I will be deciding these matters sooner
rather than later. I’m not going to make any
rash promises about how soon is soon, but I’m
talking weeks, not months or years. And when
I do decide them, there will be a briefing
schedule. . . .
(ECF No. 136; N.T. 2/17/16, at 73-74.) Marshall was present
at the hearing.
Eight days later, however, and before the District
Court had announced any decision, Marshall filed pro se the
notice of appeal at issue here. (ECF No. 137.) The notice
states in relevant part that Marshall “appeals . . . from the
Order [of] . . . Judge James Knoll Gardner, on the date of
February 18th, 2016, denying petitioner’s motions to remove
5
counsel and denying petitioner’s Sixth Amendment right to
proceed pro-se. Petitioner seeks reversal of that order.” (Id.
at 1) (capitalization and punctuation standardized). In fact,
there was no such order, and Marshall’s reference to a
February 18 order appears to be a reference to the February
17 hearing.
The District Court ultimately made its decision on
these issues and, by order entered March 24, 2016, it found
Marshall mentally incompetent to proceed pro se and denied
his request for removal of counsel. (ECF No. 141.)
Marshall’s 30-day deadline to appeal that ruling expired on
April 25, 2016 (April 23 being a Saturday). See Fed. R. App.
P. 4(a)(1)(A). Neither Marshall nor his counsel filed anything
with the District Court or this Court by that time, and
Marshall himself has filed nothing since. After Marshall filed
his notice of appeal, the Clerk notified the parties that this
appeal would be considered for possible dismissal due to a
jurisdictional defect and gave them an opportunity to respond.
No party has filed a response.
II. Analysis
“An appellate court lacks jurisdiction over an appeal
that is untimely filed, including premature appeals.” Lazorko
v. Pa. Hosp., 237 F.3d 242, 248 (3d Cir. 2000). Marshall’s
notice of appeal was premature because, when he filed it, the
District Court had not yet issued or announced its decision on
his motion for removal of counsel. Thus, unless there is some
basis to deem Marshall’s notice of appeal to have ripened
now that the District Court has ruled, we must dismiss this
6
appeal as “premature and void.” Lazy Oil Co. v. Witco
Corp., 166 F.3d 581, 585 (3d Cir. 1999).
We conclude that there is no such basis and therefore
will dismiss this appeal. There are two ways in which
premature appeals can ripen in this Circuit—under Rule
4(a)(2) of the Federal Rules of Appellate Procedure, and
under the doctrine based on Cape May Greene, Inc. v.
Warren, 698 F.2d 179 (3d Cir. 1983). See ADAPT of Phila.
v. Phila. Hous. Auth., 433 F.3d 353, 364 (3d Cir. 2006).
Neither applies in this situation. Even if their requirements
were otherwise satisfied, neither permits the ripening of an
appeal filed before the District Court announces the decision
sought to be challenged.
A. Rule 4(a)(2)
Rule 4(a)(2) is the rule governing premature notices of
appeal. The rule provides that “[a] notice of appeal filed after
the court announces a decision or order—but before the entry
of the judgment or order—is treated as filed on the date of
and after the entry.” Fed. R. App. P. 4(a)(2) (emphasis
added). By its terms, this rule applies only when the District
Court actually has announced some decision or order. See
United States v. Cooper, 135 F.3d 960, 962 (5th Cir. 1998)
(holding that Rule 4(a)(2) requires an actual District Court
“decision” and does not permit the ripening of an appeal from
a Magistrate Judge’s recommendation);2 Williams v. Roberts,
2
While Cooper is consistent with our Rule 4(a)(2)
jurisprudence in its recognition that only an actual District
Court decision triggers the rule, Cooper is in some tension
7
116 F.3d 1126, 1127 n.3 (5th Cir. 1997) (per curiam) (holding
that a pro se prisoner’s appeal filed before the District Court
announced its decision did not ripen under Rule 4(a)(2)).
Rule 4(a)(2) does not apply here because Marshall
filed his notice of appeal before the District Court announced
its decision. The District Court announced its decision only
later, and “not even Rule 4(a)(2) can cause a notice of appeal
that is filed before a ruling has even been announced to
encompass the later-announced ruling.” 16A Charles Alan
Wright et al., Federal Practice and Procedure § 3950.5 (4th
ed. 2008); see also DeJohn v. Temple Univ., 537 F.3d 301,
306, 307 n.3 (3d Cir. 2008) (holding that Rule 4(a)(2) did not
permit challenge to the final judgment on an appeal from a
prior interlocutory order).
Applying the rule in this situation also would not
comport with its purpose. Rule 4(a)(2) is “intended to protect
the unskilled litigant who files a notice of appeal from a
decision that he reasonably but mistakenly believes to be a
final judgment[.]” FirsTier Mortg., 498 U.S. at 276. The
Rule does not apply when “[a] belief that . . . a decision is a
final judgment would not be reasonable.” Id. In this case, it
was not reasonable for Marshall to conclude that the District
Court announced a final decision because the District Court
did not announce any decision at all. To the contrary, the
with our Cape May Greene jurisprudence. See Lazy Oil, 166
F.3d at 586-87. That tension exists because, unlike this court,
the Fifth Circuit has concluded that FirsTier Mortgage
abrogated its own version of the Cape May Greene doctrine.
See id.
8
District Court expressly stated that it had not made a decision
and would do so in the future. Even making allowances for
Marshall’s pro se status, this situation does not present the
kind of trap for the unwary that Rule 4(a)(2) was designed to
prevent.
B. The Cape May Greene Doctrine
The Cape May Greene doctrine also does not apply in
this situation. Under that doctrine,
where there is no showing of prejudice by the
adverse party and we have not taken action on
the merits of an appeal, a premature notice of
appeal, filed after disposition of some of the
claims before a district court, but before entry
of final judgment, will ripen upon the court’s
disposal of the remaining claims.
Khan v. Att’y Gen., 691 F.3d 488, 493 (3d Cir. 2012)
(quoting DL Res., Inc. v. FirstEnergy Sols. Corp., 506 F.3d
209, 215 (3d Cir. 2007)). The doctrine ensures that
“practical, not technical considerations” govern the
determination of finality, id. (quoting Cape May Greene, 698
F.2d at 185), and it avoids “elevat[ing] a mere technicality
above the important substantive issues” raised by an appeal,
id. (quoting Lazy Oil, 166 F.3d at 587).
In Cape May Greene, the plaintiff appealed from an
order entering summary judgment in favor of the last
remaining defendant. See Cape May Greene, 698 F.2d at
184. The order was not final when the plaintiff filed its notice
9
of appeal because one defendant’s cross-claim against another
defendant remained pending. See id. We nevertheless
exercised jurisdiction over the District Court’s entry of
summary judgment because the District Court later dismissed
the cross-claim, and thus rendered final the order appealed
from, before we took action on the appeal. See id. at 184-85.
The Cape May Greene doctrine is broader than Rule
4(a)(2) in one respect. See ADAPT of Phila., 433 F.3d at
363-64. Rule 4(a)(2) permits the ripening of a notice of
appeal from a decision that is immediately appealable if the
District Court has announced the decision but has not yet
formally entered it. The Cape May Greene doctrine, by
contrast, permits the ripening of a notice of appeal from a
decision that is not immediately appealable but that becomes
appealable before we take action on the appeal.
What both Rule 4(a)(2) and the Cape May Greene
doctrine have in common, however, is that they permit the
ripening only of appeals that are taken from actual District
Court decisions. We appear never to have made that point
explicitly, so we take the opportunity to do so now. In the
absence of circumstances not presented here, the Cape May
Greene doctrine does not permit the ripening of a notice of
appeal filed before the District Court announces the decision
sought to be challenged. Instead, we have applied the
doctrine in civil actions only to permit the ripening of appeals
from actual decisions, and we have done so only to entertain
challenges to those decisions themselves and not to
subsequent rulings made after the filing of the notice of
appeal. See, e.g., DL Res., 506 F.3d at 214-16 (addressing
order entering summary judgment on liability but not
10
damages); Lazy Oil, 166 F.3d at 585-87 (addressing order
approving class settlement but not an allocation plan); Batoff
v. State Farm Ins. Co., 977 F.2d 848, 851 & n.5 (3d Cir.
1992) (addressing order dismissing complaint with leave to
amend); Presinzano v. Hoffman-La Roche, Inc., 726 F.2d
105, 108 (3d Cir. 1984) (addressing order entering partial
summary judgment); cf. ADAPT of Phila., 433 F.3d at 361-
65 (declining to apply Cape May Greene to interlocutory
discovery orders).3
3
To the extent that our decision in the administrative context
in Khan represents an exception to this principle, it is
distinguishable. In that case, the petitioners filed their
petition for review after a clerk with the Board of
Immigration Appeals informed them on the day they were
scheduled for removal that the Board would not consider their
motion to reopen and emergency motion for a stay. See
Khan, 691 F.3d at 492. The Board later denied their motion
to reopen, and we permitted petitioners to challenge that
ruling. Id. at 492-93. We did so by applying the Cape May
Greene doctrine “to the circumstances presented in th[at]
case.” Id. at 494. Those specific circumstances are
instructive. The petitioners in Khan initially sought review of
a statement by the Board’s clerk that they understandably
interpreted as “an effective denial of their motion.” Id. at
495. Then, after the Board denied their motion on the merits,
petitioners filed with this Court a response in opposition to
dismissal that we construed “as updating the petition for
review into a challenge to” that later ruling. Id. at 494. Thus,
Khan involved both (1) a petition for review from the
11
The distinguishable situation presented in Khan aside,
we have located no authority permitting the ripening of a
notice of appeal filed before the District Court has announced
any decision at all. That is for good reason. Extending the
Cape May Greene doctrine to this situation would permit a
litigant to file a preemptive notice of appeal before the
District Court makes or announces any decision and then
proceed with the appeal if the decision later proves
unfavorable. Other courts have declined to sanction that
approach. As the Fifth Circuit has explained, “[s]ystemic
interests in the conservation of judicial resources dictate that a
party must not appeal an order simply because he believes it
will be adverse. Only where the appealing party is fully
certain of the court’s disposition . . . will appeal be proper.”
Cooper, 135 F.3d at 963.
We likewise decline to sanction that approach in this
case, for three reasons. First, the statute and rule governing
functional equivalent of an actual decision and (2) the
functional equivalent of an amended petition for review filed
after the decision that petitioners ultimately challenged.
There was no functional equivalent of a decision in this case
because the District Court expressly advised Marshall that it
had not made a decision and would do so in the future. There
also is no functional equivalent of an amended notice of
appeal because Marshall did not file anything more after the
District Court issued its decision. We further note that Khan
was decided on administrative review and that appellate
Rules 3 and 4, discussed later herein, did not apply to that
proceeding. See Fed. R. App. P. 20.
12
the filing of the notice of appeal in this case require that it be
filed “after” the judgment or order sought to be appealed. 28
U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A). Indeed, Rule 4
was amended in 1979 to make that point explicit. See Fed. R.
App. P. 4(a)(1) advisory committee’s notes to 1979
amendment. Applying the Cape May Greene doctrine in this
situation would conflict with these provisions.
We have made that point in the criminal context, in
which appellants similarly must file their notices of appeal
“after” the judgment or order being appealed. Fed. R. App. P.
4(b)(1). We adopted the Cape May Greene doctrine in that
context to permit premature appeals, filed after a conviction
but before the final judgment of sentence, to ripen upon entry
of the final judgment of sentence. See United States v.
Hashagen, 816 F.2d 899, 905-06 (3d Cir. 1987) (en banc). In
doing so, however, we recognized that the language of Rule
4(b) must render certain premature appeals “inoperative.” Id.
at 903. As we explained:
There must be some limits to the circumstances
in which a premature notice can be given effect;
it hardly would do to permit a party to file a
general notice of appeal at the start of the action
as a precaution to ensure timely filing. . . .
Indeed, the language of Rule 4(b) does not
support the extreme prematurity of a general
notice of appeal, for the rule requires the appeal
to be filed after either a decision, a sentence, or
an order.
13
Id. at 903-04 (emphasis added) (quotation marks and internal
citation omitted). The same principle applies in this civil
context. Marshall did not file a “general notice of appeal at
the start of the action,” but he filed his notice of appeal before
the District Court announced its decision and after the District
Court advised him that it had not made a decision at all.
Second, notices of appeal must “designate the
judgment, order, or part thereof being appealed.” Fed. R.
App. P. 3(c)(1)(B). Applying the Cape May Greene doctrine
here would conflict with this rule as well. Even when the
Cape May Greene doctrine permits the ripening of a
premature appeal from a decision that is not yet appealable, it
does so only to permit review of that decision once it
becomes appealable. It does not permit review of subsequent
rulings that were not (and could not have been) designated in
the notice of appeal. See Bonner v. Perry, 564 F.3d 424, 429-
30 (6th Cir. 2009) (applying version of the Cape May Greene
doctrine); B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531
F.3d 1282, 1296 (10th Cir. 2008) (same); see also Gov’t of
the V.I. v. Leonard A., 922 F.2d 1141, 1146 n.6 (3d Cir.
1991) (rejecting appellant’s “attempt[] to appeal from a
determination and order made . . . after he filed the appeal”
because “[t]hat issue could not possibly have been raised by
the notice of appeal”). A District Court’s subsequent ruling
in this situation is not subject to review unless the appellant
files another notice of appeal designating that ruling, and
Marshall has filed nothing that could be construed as another
notice of appeal in this case.
14
Finally, even if we were at liberty to apply the Cape
May Greene doctrine in this situation,4 we would decline to
do so because applying it here would not be consistent with
its purpose. As noted above, we apply the Cape May Greene
doctrine to avoid “elevat[ing] a mere technicality above the
important substantive issues” raised by an appeal. Lazy Oil,
166 F.3d at 587. In ADAPT of Philadelphia, we declined to
apply the doctrine to permit the ripening of appeals from
interlocutory discovery orders. See 433 F.3d at 364-65. We
did so because applying the doctrine in that situation “would
do more than overcome a mere technicality—it would invite
the very piecemeal litigation discouraged by 28 U.S.C. §
1291.” Id. at 364.
4
We have based our application of the Cape May Greene
doctrine in part on Rule 2 of the Federal Rules of Appellate
Procedure. See Lazy Oil, 166 F.3d at 587. That rule permits
us to suspend the requirements of certain other rules “to
ensure that justice is not denied on the basis of a mere
technicality.” Id. As we have recognized, however, “Rule 2
cannot be utilized to expand the jurisdiction of the Court.” Id.
at 587 n.9. Giving effect to a notice of appeal filed before the
District Court even announces the decision sought to be
challenged arguably would do just that. See Benn v. First
Jud. Dist. of Pa., 426 F.3d 233, 237 (3d Cir. 2005) (“A court
may not waive the jurisdictional requirements of Rules 3 and
4, even for ‘good cause shown’ under Rule 2.”). We need not
decide that issue, however, because we would decline to
assert jurisdiction under the Cape May Greene doctrine even
if we had the authority to do so.
15
There is even less of a basis to apply the Cape May
Greene doctrine when an appellant appeals before the District
Court has announced a decision at all. Doing so would erode
our “[s]ystemic interests in the conservation of judicial
resources” by encouraging litigants to file preemptive appeals
to challenge future rulings that may or may not prove
unfavorable to them. Cooper, 135 F.3d at 963. The District
Court ultimately denied Marshall’s motion in this case, but
there was no basis for Marshall to file his notice of appeal
when he did. The District Court had not announced any
decision at that time and instead had expressly advised
Marshall that it would make its decision in the future. Thus,
Marshall filed his appeal before there was anything that he
could bring before us for appellate review, prematurely or
otherwise. Marshall also knew or should have known as
much. Under these circumstances, the prematurity of
Marshall’s notice of appeal cannot be characterized as a mere
technicality.5
We have described the Cape May Greene doctrine as
taking an “expansive view of appellate jurisdiction,” and it is
one that not all Courts of Appeals share. ADAPT of Phila.,
5
Although Marshall’s notice of appeal brings nothing before
us in our appellate capacity, we could construe it as a petition
for a writ of mandamus seeking a ruling on his motion. See
Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998).
There is no reason to do so because Marshall did not
complain of any delay in ruling on his motion and, even if he
did, that issue would have become moot once the District
Court ruled.
16
433 F.3d at 362. However expansive the doctrine may be, it
does not permit the ripening of an appeal filed before the
District Court makes or announces the decision sought to be
challenged. Cf. Hashagen, 816 F.2d 899 at 903-06. Because
the District Court had not yet announced its decision when
Marshall filed his notice of appeal in this case, the Cape May
Greene doctrine does not permit Marshall’s notice to ripen
into an appeal from the District Court’s subsequent decision.
And because Marshall did not file another notice of appeal
after the District Court announced that decision, we lack
jurisdiction to review it.
III. Conclusion
For these reasons, we will dismiss this appeal. We
express no opinion on whether the District Court’s order
denying Marshall’s motion to remove counsel remains subject
to challenge on appeal from the District Court’s final
judgment.
17