Opinion
Crim. No. 98-20044-01-KHV, Civil No. 01-3089-KHV.
October 4, 2001
MEMORANDUM AND ORDER
On September 4, 2001, defendant filed Movant's Request For Order Of Court's Denying 28 U.S.C. § 2255 Motion To Vacate, Set Aside, Or Correct Sentence Rendered On March 26, 2001, Which Movant Never Received; Thus Movant Further Request Leave To Reopen The Time To File A Certificate Of Appealability Pursuant To 28 U.S.C. § 2253(c)(1) (Doc. #79), which the Court construes as (1) a request for a copy of the Court's Memorandum And Order (Doc. #73) filed March 26, 2001 and (2) a request to reopen the time to file an appeal pursuant to Rule 4(a)(6), Fed.R.App.P. The government has not responded to the motion.
Defendant has asked to reopen the time to file a request for a certificate of appealability, but 28 U.S.C. § 2253(c)(1) does not set a deadline for such a request. Rule 4(a), Fed.R.Civ.P., sets forth the deadline for defendant to file a notice of appeal. Reading together the requirements of Rule 4(a), Fed.R.App.P., and 28 U.S.C. § 2253(c)(1), a defendant must request a certificate of appealability and file a notice of appeal within the time set forth in Rule 4(a). See Marmolejo v. United States, 196 F.3d 377, 378 (2d Cir. 1999). Courts generally construe these rules, however, to require only that a pro se defendant file a request for a certificate of appealability or a notice of appeal before the deadline set forth in Rule 4(a). See id.; see also Fed.R.App.P. 22(b)(2) ("If no express request for a certificate [of appealability] is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals."); United States v. Williamson, 201 F.3d 449, 1999 WL 1083750, at *1 n. 2 (10th Cir. Dec. 2, 1999) (construing motion for certificate of appealability as notice of appeal).
Defendant's request for a copy of the Court's Memorandum And Order (Doc. #73) is sustained. Defendant apparently did not receive the order until July 16, 2001, because he had not notified the Clerk of his change of address. See Change Of Address (Doc. #74).
D. Kan. Rule 5.1 states: "Each attorney or party appearing pro se is under a continuing duty to notify the clerk in writing of any change of address or telephone number. Any notice mailed to the last address of record of an attorney or a party appearing pro se shall be sufficient notice."
As to the request to reopen the time to appeal, the Court notes that defendant's time to appeal has not begun to run. A defendant must file a notice of appeal in a Section 2255 proceeding within 60 days from the entry of judgment. See Fed.R.App.P. 4(a)(1)(B); Rule 11 of the Rules Governing Section 2255 Proceedings (time for appeal of order denying relief "is as provided in Rule 4(a) of the Federal Rules of Appellate Procedure"). The Court overruled defendant's Section 2255 motion on March 26, 2001, but the Clerk has not entered judgment on the docket pursuant to Rule 58, Fed.R.Civ.P. In an unpublished opinion involving a Section 2255 claim, the Tenth Circuit noted that a judgment or order "is entered for purposes of Fed.R.App.P. 4(a)(1)(B) when it is entered on the civil docket in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure." United States v. Bailey, 208 F.3d 227, 2000 WL 309296, at *1 (10th Cir. Mar. 27, 2000); see generally Herrera v. First N. Sav. Loan Ass'n, 805 F.2d 896, 899 (10th Cir. 1986) (entry "occurs only when the essentials of a judgment or order are set forth in a written document separate from the court's opinion and memorandum and when the substance of this separate document is reflected in an appropriate notation on the docket sheet assigned to the action in the district court") (quotation and citation omitted). Nearly every other circuit which has addressed the issue also has applied the requirements of Rule 58 to Section 2255 proceedings. See United States v. Johnson, 254 F.3d 279, 284 (D.C. Cir. 2001); United States v. Patterson, 238 F.3d 417, 2000 WL 1861856, at *1 (4th Cir. Dec. 20, 2000); United States v. Hogle, 125 F.3d 859, 1997 WL 599401, at *1 (9th Cir. Sept. 22, 1997); Hope v. United States, 43 F.3d 1140, 1142 (7th Cir. 1994), cert. denied, 515 U.S. 1132 (1995);Sassoon v. United States, 549 F.2d 983, 984-85 (5th Cir. 1977); Desmond v. United States, 333 F.2d 378, 379 n. 1 (1st Cir. 1964); Jenkins v. United States, 325 F.2d 942, 944-45 (3d Cir. 1963). But see Williams v. United States, 984 F.2d 28, 29 (2d Cir. 1993). One of the fundamental requirements of Rule 58 is that the judgment shall be set forth in a "separate document." Because no separate judgment (or order which is the functional equivalent of a judgment) has been entered on defendant's Section 2255 motion, the time for appeal has not yet started.
Although the deadline to appeal runs from the entry of "judgment or order," Fed.R.App.P. 4(a)(1)(B), the term "order" applies only to interlocutory orders which are appealable. See Fed.R.Civ.P. 54(a) ("judgment" includes "a decree and any order from which an appeal lies"); Weir v. Propst, 915 F.2d 283, 286 (7th Cir. 1990) (deadlines in Rule 4(a) apply to all appealable orders including collateral ones); see also Kurowski v. Krajewski, 848 F.2d 767, 772 (7th Cir.) ("Until a judgment is rendered `final' by entry of a separate document under Fed.R.Civ.P. 58, no one need appeal."), cert. denied, 488 U.S. 926 (1988); cf. Firstier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269, 278 (1991) (Kennedy, J., concurring) ("some orders are appealable even though they do not possess attributes of finality," citing 28 U.S.C. § 1292(a) which governs appeals of interlocutory orders). In contrast, the denial of a Section 2255 motion is a final order. The District of Columbia Circuit has held that a final "order" in a Section 2255 proceeding serves the same function as a judgment and may be sufficient to start the appeal clock running if the order otherwise satisfies the requirements of Rules 58 and 79(a). See United States v. Johnson, 254 F.3d 279, 285-86 285 n. 7 (D.C. Cir. 2001); see also Clough v. Rush, 959 F.2d 182, 185 (10th Cir. 1992) ("Generally, orders containing neither a discussion of the court's reasoning nor any dispositive legal analysis can act as final judgments if they are intended as the court's final directive and are properly entered on the docket."). In other words, if the essential elements of a judgment are set forth in a document separate from the one which explains the Court's reasoning for its decision, a party may appeal even though the judgment is mislabeled as an "order." See Johnson, 254 F.3d at 285-86 285 n. 7. As explained below, the Court's Memorandum And Order (Doc. #73) was not accompanied by a judgment or order which was sufficient to start the time for appeal.
Although the Tenth Circuit likely would find that the time for appeal in this case has not yet started, absent a published Tenth Circuit opinion on the issue and out of an abundance of caution, the Court will address defendant's request to reopen the time for appeal. Defendant's request is based on the assumption that the time for appeal started to run on March 26, 2001 — the date of the Court's Memorandum And Order. Rule 4(a)(6), Fed.R.App.P., permits a district court to reopen the time for appeal for 14 days, if the court finds that a party entitled to notice of a judgment or order did not receive such notice within 21 days of its entry, no party would be prejudiced, and a party files a motion requesting the extension of time within 180 days of entry of the judgment or order, or within seven days of receipt of such notice, whichever is earlier. Defendant did not receive notice of the Court's Memorandum And Order (Doc. #73) until August 27, 2001, see Return Receipt (Doc. #78) filed August 29, 2001, and he filed his motion within seven days of receipt of such notice. The Court also finds that the government would not be prejudiced if the time for appeal is reopened.
The seven-day period expired on September 3, 2001, which was a legal holiday. Pursuant to Rule 26(a)(3), Fed.R.App.P., the period was extended until the following day, September 4, 2001.
IT IS THEREFORE ORDERED that Movant's Request For Order of Court's Denying 28 U.S.C. § 2255 Motion To Vacate, Set Aside, Or Correct Sentence Rendered On March 26, 2001, Which Movant Never Received; Thus Movant Further Request Leave To Reopen The Time To File A Certificate Of Appealability Pursuant To 28 U.S.C. § 2253(c)(1) (Doc. #79) filed September 4, 2001 be and hereby is SUSTAINED. Pursuant to Rule 4(a)(6), the Court reopens the time for appeal of the Memorandum And Order (Doc. #73) filed March 26, 2001 for 14 days from the date of this Memorandum And Order.
Pursuant to Rule 58, Fed.R.Civ.P., the Clerk is directed to enter judgment in accordance with the Court's Memorandum And Order (Doc. #73) filed March 26, 2001. The Clerk is further directed to send to defendant and the office of the United States Attorney a copy of the Court'sMemorandum And Order (Doc. #73) filed March 26, 2001, a copy of the judgment and the docket sheet which reflects entry of that judgment, and a copy of this Memorandum And Order.
IT IS SO ORDERED.