Tyrone Glen Sanders v. United States

PER CURIAM:

The appellant in this case asks us to reconsider our order of January 6, 1997, dismissing his appeal for lack of jurisdiction. We issued this order because the appellant filed his notice of appeal after the time allotted by Fed. R.App. P. 4(a)(1). Upon reconsideration, we vacate our earlier order and remand to the district court for a determination of whether the time for the appellant to file his notice of appeal should be reopened pursuant to Fed. R.App. P. 4(a)(6).

The appellant, proceeding pro se, seeks to appeal the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. We originally dismissed this appeal for lack of jurisdiction because the appellant filed his notice of appeal more than sixty days after the entry of the district *186 court’s order denying Ms motion. The order was entered on June 19, 1996. Pursuant to Fed. R.App. P. 4(a)(1), the appellant had until August 19, 1996, to file a notice of appeal. 1

The appellant’s notice of appeal bore a certificate of service dated August 28, 1996, and was filed by the district court on August 30, 1996. For Rule 4(a)(1) purposes, his notice of appeal is deemed filed on the date he delivered it to prison authorities, which we assume was August 28,1996, several days after the rule 4(a)(1) deadline. 2 See Houston v. Lack, 487 U.S. 266, 271-72, 108 S.Ct. 2379, 2382-83, 101 L.Ed.2d 245 (1988).

Citing Fed.R.Civ.P. 77(d), we held that lack of notice of entry of an order does not excuse the failure to file a timely notice of appeal. We then noted that we customarily treat a late notice of appeal in a criminal case as a motion for an extension of time pursuant to Fed. R.App. P. 4(b) and remand the case to the district court for a determination of excusable neglect. 3 See, e.g., United States v. Ward, 696 F.2d 1315, 1317-18 (11th Cir.), cert. denied, 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308 (1983). We declined to remand in this case, however, because in civil actions, a formal motion for extension of time pursuant to Fed. R.App. P. 4(a)(5) must be filed in the district court. 4 See, e.g., Parker v. Strickland, 728 F.2d 1406, 1407 (11th cir.1984); Brooks v. Britton, 669 F.2d 665, 666-67 (11th Cir.1982). Thus, we dismissed the appeal rather than remanding it to the district court.

The appellant argues in the instant motion that we should allow his appeal to continue pursuant to Rule 4(a)(5) because he can show excusable neglect for not filing his notice of appeal on time. In Ms notice of appeal, he stated that he did not receive the district court’s order denying Ms § 2255 motion until August 26,1996. If he can prove tMs allegation, the most appropriate means of obtaining an extension would not be a motion pursuant to subsection five of Rule 4(a). Subsection six provides a more lement rule for a litigant in the appellant’s situation. It provides,

The district court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, wMchever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.

Fed. R.App. P. 4(a)(6).

Thus, the proper question before us is whether we should treat his late notice of appeal as a motion pursuant to Rule 4(a)(6) and remand the ease to the district court. TMs is an issue of first impression in our circuit. Our case law establishes the following two relevant rules for pro se appellants: (1) in criminal eases, we treat a late notice of appeal as a motion for extension of time due to excusable neglect under Rule 4(b) and remand the case to the district court; and (2) in civil eases, we refuse to treat a late notice of appeal as a motion for extension of time *187 due to excusable neglect under Rule 4(a)(5) and accordingly dismiss the appeal. Compare Ward, 696 F.2d at 1317-18 (criminal cases), with Parker, 728 F.2d at 1407, and Brooks, 669 F.2d at 667 (civil cases).

Although at first blush it seems that Parker and Brooks should control, 5 there are powerful reasons to apply the approach in Ward, at least when a pro se litigant files a late notice of appeal because he did not receive notice of the entry of the order or judgment from which he seeks to appeal. First, the addition of Rule 4(a)(6), with its more liberal provisions for extension of time, suggests that notices of appeal filed late because the appellant did not receive notice of the judgment should be treated differently (and more favorably) than those filed late for other reasons (i.e., those governed by Rule 4(a)(5)’s excusable neglect standard). Second, when through no fault of his own, a pro se litigant does not receive notice of the order from which he seeks to appeal, it would be unjust to deprive him of the opportunity to present his claim to this court. 6

Third, we have a duty to “liberally construe [a pro se litigant’s] assertions to discern whether jurisdiction to consider his motion can be founded on a legally justifiable base.” Fernandez v. United States, 941 F.2d 1488, 1491 (11th Cir.1991); see also Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (noting that pro se pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers”). Finally, following the approach in Parker and Brooks in a case where a prisoner alleges that he did not receive notice of the judgment or order from which he seeks to appeal would allow prison officials to block his access to our court by ensuring that he does not receive notice of an adverse decision until after the time provided by Rule 4(a)(1). This is one of the main concerns that led the Supreme Court to hold that a prisoner’s notice of appeal is deemed filed when delivered to prison authorities. See Houston, 487 U.S. at 271-272, 108 S.Ct. at 2382-83; cf. Garvey v. Vaughn, 993 F.2d 776, 780 (11th Cir.1993) (“As defendants in a pro se prisoner’s civil rights action, prison officials ‘may have every incentive to delay,’ and, even if he suspects delay by prison authorities, the pro se prisoner is helpless to investigate or prove such dilatoriness.”) (quoting Houston, 487 U.S. at 271, 108 S.Ct. at 2382).

These considerations lead us to distinguish Parker and Brooks from the instant case. Neither case involved Rule 4(a)(6) or any allegation that the appellant did not receive timely notice of the entry of the judgment or order from which the appellant sought to appeal. While precedent makes clear that we may not treat an untimely filed notice of appeal in a civil case as a motion for an extension of time under Rule 4(a)(5), we hold that when a pro se appellant alleges that he did not receive notice of the entry of the judgment or order from which he seeks to appeal within twenty-one days of its entry, we must treat his notice as a Rule 4(a)(6) motion and remand to the district court for a determination of whether the appellant merits an extension under that rule.

For the foregoing reasons, we GRANT the appellant’s motion “to reinstate appeal,” construed as a motion for reconsideration, VA *188 CATE our January 6,1997, order dismissing this appeal, and REMAND the case to the district court for further proceedings consistent with this opinion.