[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
__________________ JUNE 04, 2002
THOMAS K. KAHN
No. 00-12402 CLERK
__________________
D.C. Docket No. 97-01235-CV-J-21A
WAYMOND B. MCDANIEL,
Petitioner-Appellant,
versus
MICHAEL W. MOORE,
ROBERT A. BUTTERWORTH,
Florida Attorney General,
Respondent-Appellee.
_______________________________
Appeal from the United States District Court
for the Middle District of Florida
_______________________________
(June 4, 2002)
Before ANDERSON, HULL and KENNEDY*, Circuit Judges.
KENNEDY, Circuit Judge:
*
Honorable Cornelia G. Kennedy, U.S. Circuit Judge for the Sixth Circuit,
sitting by designation.
This appeal raises a single issue: whether the district court abused its
discretion when it denied appellant Waymond McDaniel’s request to reopen the
time to file a notice of appeal from an order in his underlying habeas corpus action.
McDaniel pled guilty to second degree murder in Florida state court. He later filed
a petition for writ of habeas corpus in federal district court, pursuant to 28 U.S.C.
§2254. The district court dismissed McDaniel’s petition with prejudice, finding that
McDaniel had procedurally defaulted on his claims. On November 9, 1999, the
court entered a judgment dismissing the petition. On January 12, 2000, McDaniel
filed a pleading styled as a motion for relief from judgment under Federal Rule
60(b).1 The court denied McDaniel’s motion on February 16, 2000.
McDaniel did not receive a copy of the judge’s ruling at that time. According
to McDaniel, he filed a notice of inquiry about the status of his case sometime in
March, 2000. On March 15, 2000, the court mailed to McDaniel a document
indicating that his motion for relief from judgment had been denied on February 16,
1
Federal Rule of Civil Procedure 60(b) provides, in relevant part: “On
motion and upon such terms as are just, the court may relieve a party or a party’s
legal representative from a final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence . . . ;(3) fraud . . . misrepresentation, or other misconduct of an
adverse party; . . . or (6) any other reason justifying relief from the operation of the
judgment. The motion shall be made within a reasonable time, and for reasons (1),
(2), and (3) not more than one year after the judgment, order, or proceeding was
entered or taken.”
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but the document did not indicate the judge’s reasons for doing so. Specifically, the
March 15 letter stated: “Petitioner’s Motion for Relief from Judgment was denied
in an Order from the Court on 2/16/00.” The record does not indicate when
McDaniel actually received the clerk’s letter.
McDaniel then requested a copy of the district court’s order. McDaniel’s
request was dated March 28, 2000. The docket sheet indicates that the clerk
received this request and responded on March 30, 2000. The record does not
indicate when McDaniel actually received the copy of the order.
McDaniel then filed a motion to reopen the time to file notice of appeal. The
motion was dated April 4, 2000, but was stamped as filed by the district court on
April 7, 2000. The record does not indicate the date on which the motion was
actually placed into the prison mail system by McDaniel. The district court denied
the motion to reopen the time to file notice of appeal as untimely. McDaniel now
appeals that ruling.
Federal Rule of Appellate Procedure 4(a)(6) provides:
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;
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(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).
McDaniel contends that his motion to reopen was timely under Rule 4(a)(6)
because his motion to reopen, dated April 4, 2000, was filed within 7 days after he
received “notice of the entry” of the February 16 order denying his Rule 60(b)
motion. McDaniel asserts that he did not receive notice of the resolution of his Rule
60(b) motion until March 31, 2000. This is the date on which he contends he
actually received a copy of the district court’s February 16 order denying his Rule
60(b) motion. Respondent argues, however, that the March 15, 2000 letter from the
clerk provided McDaniel with “notice of the entry” of the February 16 order and
thus started the seven day clock under Rule 4(a)(6).
As McDaniel points out, the courts are divided on whether the words “notice
of the entry” found in Rule 4(a)(6) require written notice, as McDaniel contends, or
whether “actual notice” is sufficient to start the clock. See Bass v. United States
Dept. of Agriculture, 211 F.3d 959, 962-64 (5th Cir. 2000) (discussing differences
among the circuits). We need not address this conflict here, because even if we
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were to agree with McDaniel that only written notice is sufficient, the clerk’s letter
dated March 15 satisfies this requirement. It provided McDaniel with written notice
of the entry of an order on February 16 denying his Rule 60(b) motion.
Recognizing that this case does not present the issue that has split other
courts, McDaniel argues that we should go beyond the holdings of those courts
requiring written notice and interpret “notice of the entry” to require a copy of the
court’s order. In support, McDaniel appeals to policy, arguing that this
interpretation is necessary to permit a losing party to examine the judge’s reasoning
and determine whether there is a legal basis for an appeal. McDaniel’s counsel
concedes that he is aware of no case in which a court has held that a copy of the
judgment or order is required to start the clock under Rule 4(a)(6). We decline to
adopt McDaniel’s restrictive view of notice. Before considering whether his
interpretation results in the best policy, we must examine the text of the rule. The
plain language of the rule requires only “notice of the entry,” not a copy of the order
itself. Thus, the text of the rule unambiguously rules out McDaniel’s interpretation,
and we could end the inquiry here. Even if we consider McDaniel’s policy
argument, however, we remain unpersuaded that his restrictive reading is necessary.
A losing party is not required to set forth the legal basis for an appeal within seven
days, but is required only to file a motion to reopen the time to file an appeal at that
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early stage. Notice of an adverse order is sufficient for this purpose, even if the
legal reasoning is not spelled out for the losing party. See generally Nunley v. City
of Los Angeles, 52 F.3d 792, 794-95 (9th Cir. 1995) (reviewing the docket sheet
entry reflecting the order was sufficient notice, even though the order itself was not
in the file).
McDaniel contends that even if his argument as to what constitutes notice
under Rule 4(a)(6) fails, there remain factual questions which require remand. He
argues that the record does not clearly indicate (a) the date on which he actually
received the clerk’s letter dated March 15, 2000, or (b) the date on which he
deposited his motion to reopen, dated April 4, in the prison’s internal mail system.2
According to McDaniel, these are factual questions that must be resolved by the
district court on remand. We disagree. First, it is undisputed that on March 15,
2000, the clerk sent a written response to McDaniel indicating that his Rule 60(b)
motion had been denied on February 16. McDaniel clearly received this March 15
letter, because he later attached it to his motion to reopen the time to file an appeal.
Allowing 3 days for mailing, or until March 18, McDaniel’s motion to reopen
remains untimely.
2
An inmate’s filings are deemed timely if they are deposited in the prison’s
internal mail system on or before the last day for filing. Fed. R. App. P. 4(c)(1).
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Also, under the prison “mailbox” rule, the earliest possible date McDaniel’s
motion to reopen could arguably be considered “filed” is April 4, which is the date
on his motion.3 Even with that April 4 date, McDaniel would have to show that he
did not receive the March 15 letter until 13 days later (March 28) in order to make
his April 4 motion to reopen timely.4 At oral argument, counsel for McDaniel
pointed out that McDaniel’s request for a copy of the order was dated March 28,
2000, and thus raised the possibility that McDaniel received the clerk’s March 15
letter on March 28 and responded with a request for a copy of the order the very
same day. If this were true, McDaniel’s motion to reopen the time to file notice of
appeal would have been timely if considered filed on April 4, exactly seven days
later. The burden of proving non-receipt (or in this case, delayed receipt) of notice
is on the party seeking to reopen the time for appeal under Rule 4(a)(6). See
Nunley, 52 F.3d at 795. Although the rule does not require a strong presumption of
timely receipt, see id. at 795-96, here McDaniel offered the district court no reason
3
McDaniel has not alleged, much less proved, when he gave his motion to
reopen to prison authorities. The record, however, shows the clerk received and
filed his motion to reopen on April 7, which is consistent with a 3 day mailing
period from the April 4 date of the motion.
4
We note that under this scenario it would have taken the letter thirteen days
to reach McDaniel, which is significantly longer than the 3 day period courts
generally provide for the delivery of mail. See Fed. R. Civ. P. 6(e).
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to question whether he timely received the clerk’s March 15 letter. McDaniel failed
to present any evidence to the district court showing when he actually received the
March 15 letter or any evidence even suggesting that the clerk’s March 15 letter did
not reach petitioner until March 28. In fact, McDaniel did not even allege that the
letter arrived so late. McDaniel has already been given an opportunity to carry his
burden and resolve any remaining factual uncertainties about the relevant dates in
his favor, but has failed to do so. A remand is therefore unnecessary.
For the foregoing reasons, we AFFIRM the order of the district court.
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