Apelt, et al v. Ryan, et al

Filing 228

ORDER granting 220 Petitioner's Motion to Construe Petitioner's Request for Certificate of Appealability. The Clerk of Court shall treat Petitioner's Certificate of Appealability, filed June 29, 2011, as a Notice of Appeal and shall process said Notice of Appeal forthwith. Signed by Chief Judge Roslyn O Silver on 4/20/12.(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Rudi Alfred Apelt,
Petitioner,

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vs.

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Charles L. Ryan, et al.,

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Respondents.

) No. CV-97-01249-PHX-ROS
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) ORDER
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Before the Court is Petitioner’s Motion to Construe Petitioner’s Request for a

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Certificate of Appealability as a Notice of Appeal. (Doc. 220). Respondents oppose the

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motion. (Doc. 225.) For the reasons set forth herein, the motion is granted.

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BACKGROUND

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In 1997, Petitioner initiated this habeas proceeding under 28 U.S.C. § 2254. In 2000,

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the Court determined the procedural status of Petitioner’s claims, concluding that some were

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procedurally barred and some entitled to merits review. (Doc. 71.) In 2002, following the

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Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002), this Court stayed

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Petitioner’s sentencing-related claims pending successive state post-conviction proceedings

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based on Petitioner’s alleged mental retardation and ineligibility for the death penalty.

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(Docs. 147, 149, 151.) While state proceedings were ongoing, the Court ruled on Petitioner’s

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conviction-related claims, concluding that he was not entitled to habeas relief. (Doc. 190.)

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Subsequently, the state court determined that Petitioner was mentally retarded, vacated

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his death sentence, and resentenced him to life imprisonment, thus rendering moot

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Petitioner’s pending sentencing-related habeas claims. Petitioner appealed his resentencing,

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but it was affirmed. State v. Apelt, No. 2 CA-CR-2009-0256, 2010 WL 3528887 at *1 (Ariz.

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App. Div. 2, Sept. 10, 2010) (unpublished memorandum decision).

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On May 23, 2011, this Court ordered Petitioner to show cause why the stay of his

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sentencing claims should not be lifted, the claims dismissed as moot, and judgment entered.

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(Doc. 214.) In response, Petitioner conceded there was no reason why the Court should not

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lift the stay, dismiss the sentencing claims as moot, and enter judgment. (Doc. 216.)

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However, Petitioner requested additional time to submit a motion for a certificate of

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appealability (COA), which subsequently was filed on June 29, 2011. (Doc. 217.)

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On September 13, 2011, the Court dismissed Petitioner’s sentencing claims as moot and

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denied Petitioner’s amended habeas petition. (Doc. 218.) The Court also issued a COA on

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one claim. The Clerk of Court entered judgment the same day. Despite the COA issuance,

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Petitioner inexplicably failed to file a notice of appeal (NOA) pursuant to Rule 4 of the

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Federal Rules of Appellate Procedure (FRAP). In December 2011, Petitioner filed the instant

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motion asking the Court to construe his COA request as a premature NOA. (Doc. 220.)

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Respondents filed a response, and Petitioner filed a reply. (Docs. 225, 226.)

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DISCUSSION

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FRAP 4(a) provides in relevant part that a NOA must be filed within 30 days after the

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entry of judgment or an order disposing of a motion to alter or amend judgment under Rule

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59. Fed. R. App. P. 4(a)(1)(A). It provides only two avenues for relief from that time limit.

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First, a district court may extend the time to file a NOA if (i) a party so moves no later than

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30 days after the time prescribed by Rule 4(a) expires, and (ii) the party demonstrates

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“excusable neglect or good cause.” Fed. R. App. P. 4(a)(5)(A). Second, a district court may

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reopen the time to file a NOA in limited circumstances when a party did not receive notice

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of the entry of judgment. Fed. R. App. P. 4(a)(6).

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In this case, it is undisputed that Petitioner received notice of the entry of judgment and

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that he did not file a motion to extend the time for filing a NOA either before expiration of

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the 30-day period prescribed by Rule 4(a)(1) or the additional 30 days provided by Rule

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4(a)(5)(A). To overcome his neglect in failing to file a NOA, Petitioner asks the Court to

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construe his motion for COA as a premature NOA under FRAP 4(a)(2). Respondents

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counter that Petitioner’s COA request is not the functional equivalent of a NOA because it

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failed to provide the notice required by FRAP 3(c). (Doc. 225 at 8.)

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Rule 3(c) provides that a notice of appeal must specify the appealing party, designate

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the judgment or order being appealed, and name the court to which the appeal is taken. Rule

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4(a)(2) provides that a notice of appeal filed after the court announces a decision or order,

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but before entry of judgment, is treated as filed on the date judgment is entered. If the Court

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construes Petitioner’s COA request as a premature NOA, Rule 4(a)(2) requires that the

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construed NOA be treated as timely filed. The question for this Court, then, is whether

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Petitioner’s COA request is the functional equivalent of a NOA. Ninth Circuit precedent

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dictates that it is.

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In Tinsley v. Borg, 895 F.2d 520, 523 (9th Cir. 1990), the Ninth Circuit adopted the

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position of several other circuits that a certificate of probable cause (CPC) can serve “double

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duty” as a notice of appeal. In particular, the court cited McMillan v. Barksdale, 823 F.2d

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981, 983 (6th Cir. 1987), in which the Sixth Circuit reasoned that construing a CPC as a

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NOA is consistent with the purpose of the rules governing NOAs because FRAP 3(c) directs

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that an appeal should not be dismissed for mere “informality of form or title” and because

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the rule’s advisory committee expressly approves “a liberal view of papers filed by indigent

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and incarcerated defendants.” Subsequently, in Ortberg v. Moody, 961 F.2d 135, 137 (9th

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Cir. 1992), the Ninth Circuit clarified that the “double duty” rule announced in Tinsley

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applies equally to petitioners proceeding through counsel, as is the case here.

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Respondents do not address this authority nor argue that COAs should be treated

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differently from CPCs. See Slack v. McDaniel, 529 U.S. 473, 483 (2000) (observing that

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except for minor word substitution, Congress codified CPC standard into COA requirement).

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Accordingly, the Court will construe Petitioner’s COA request as a NOA. Because Petitioner

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filed his COA request after this Court announced its intention to dismiss his habeas petition

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but before formal entry of judgment, the Court finds that Petitioner’s construed NOA is

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timely pursuant to FRAP 4(a)(2). See FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498

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U.S. 269, 276 (1991) (determining that Rule 4(a)(2) permits a NOA from a nonfinal decision

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to operate as a NOA from final judgment “when a district court announces a decision that

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would be appealable if immediately followed by the entry of judgment”).

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Based on the foregoing,

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IT IS HEREBY ORDERED that Petitioner’s Motion to Construe Petitioner’s Request

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for a Certificate of Appealability (Doc. 220) is GRANTED. The Clerk of Court shall treat

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Petitioner’s Certificate of Appealability, filed June 29, 2011, as a Notice of Appeal and shall

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process said Notice of Appeal forthwith.

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DATED this 20th day of April, 2012.

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