Case: 23-30151 Document: 00517060180 Page: 1 Date Filed: 02/08/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
February 8, 2024
No. 23-30151
____________ Lyle W. Cayce
Clerk
Kendrick Christmas,
Petitioner—Appellant,
versus
Tim Hooper, Warden, Louisiana State Penitentiary,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:18-CV-691
______________________________
Before Elrod, Willett, and Duncan, Circuit Judges.
Per Curiam:*
In 2011, Kendrick Christmas, Louisiana prisoner #585115, received a
life sentence for second-degree murder and two 50-year sentences for
attempted murder. All three sentences were set to run concurrently.
Proceeding pro se, Christmas in 2018 filed a petition for federal habeas relief
under 28 U.S.C. § 2254, alleging various constitutional violations at his trial
and on appeal. On March 31, 2022, the district court denied his petition as
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-30151 Document: 00517060180 Page: 2 Date Filed: 02/08/2024
No. 23-30151
untimely and granted a certificate of appealability (COA) on the timeliness
issue.
Christmas had until May 2, 2022, to appeal. See Fed. R. App. P.
4(a)(1)(A), 26(a)(1)(C). On May 5, 2022, we received a letter dated May 2
from Christmas, requesting a “return date” and an extension to file a “COA
brief.” The letter was postmarked on May 3, 2022. A deputy clerk of our
court responded that there was no open appeal and that the district court’s
order did not transfer his case to this court.
On June 10, 2022, Christmas moved the district court to reopen his
time for appeal under Federal Rule of Civil Procedure 60(b). The district
court denied Christmas’s Rule 60(b) motion, and Christmas timely appealed.
See Fed. R. App. P. 4(c)(1)(A)(ii).
Christmas does not argue on appeal that the district court erred in
denying his Rule 60(b) motion. He has thus forfeited that argument. See Price
v. Digit. Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988) (per curiam)
(“Although we liberally construe the briefs of pro se appellants, we also
require that arguments must be briefed to be preserved.” (citations
omitted)). Instead, Christmas says that we should construe his letter dated
May 2, 2022, as a timely notice of appeal from the district court’s March 31,
2022, judgment.1
“A timely filed notice of appeal in a civil case is ‘mandatory and
jurisdictional.’ Nonetheless, Federal Rule of Appellate Procedure 3 makes
clear that formality and title are not dispositive of whether a document is a
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1
Christmas’s remaining arguments, as well as Hooper’s, misguidedly focus on the
timeliness of Christmas’s § 2254 petition. That issue is not before us on this appeal. See
Bailey v. Cain, 609 F.3d 763, 767 (5th Cir. 2010) (“A notice of appeal from the denial of a
Rule 60(b) motion in a civil proceeding does not bring up the underlying judgment for
review.”).
2
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No. 23-30151
notice of appeal.” See Bailey, 609 F.3d at 765 (citation omitted). A document
acts as the functional equivalent of a notice of appeal so long as it “evinces
an intent to appeal and contains the identity of the party or parties appealing,
the judgment or order appealed from, and the court to which the appeal is to
be taken.” Id. at 765–66.
Even if Christmas’s letter constitutes a notice of appeal, we cannot
determine on this record whether his letter was timely filed. Christmas’s
letter was postmarked on May 3, 2022. Because the postmark date may not
match the date that Christmas placed his letter in the prison mail system, we
cannot conclude from the postmark date alone that Christmas’s letter was
untimely under the prison mailbox rule. See Fed. R. App. P. 4(c). We
remand for the limited purpose of determining when Christmas placed his
letter in the prison mail system. See Thompson v. Montgomery, 853 F.2d 287,
288 (5th Cir. 1988). Accordingly, we need not presently address the possible
interaction between Rules 4(c) and 4(d).2
We therefore AFFIRM the denial of his Rule 60(b) motion and
REMAND for the limited purpose of determining when Christmas placed
the letter in the prison mail system.
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2
Under Rule 4(d), a notice of appeal mistakenly filed in our court is considered
filed in the district court on the date that we received it. If we applied Rule 4(d) alone,
Christmas’s letter would be untimely because we received it on May 5, 2022, after the May
2 deadline to appeal.
3