Seibert v. Hooks
Filing
146
ORDER AND OPINION adopting the 142 Magistrate's Report and Recommendation denying as moot petitioners request for relief 133 and denying without prejudice petitioners post-appeal pro se motions [119, 127, 128, 131, 135, 138, and 139]. The Court determines that the time for reopening petitioners appeal, pursuant to FED. R. APP. P. 4(a)(6), should be granted, this date. Petitioner may file a notice of appeal within 14 days of the entry of this Order, pursuant to FED. R. APP. P. 4(a)(6). Signed by Judge Julie E. Carnes on 3/11/13. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
STEVEN JACOB SEIBERT,
Petitioner,
v.
CIVIL ACTION NO.
1:10-cv-1323-JEC-ECS
BRAD HOOKS,
Respondent.
ORDER AND OPINION
This case was remanded by the Eleventh Circuit after the
appeal by petitioner Steven Seibert of this Court’s Order
dismissing without prejudice his habeas corpus petition on the
ground that petitioner had failed to exhaust state remedies.
Thereafter, petitioner appealed to the Eleventh Circuit, but he
filed his appeal after the applicable deadline.
The Eleventh Circuit then sua sponte entered an order of
remand [99] directing this Court to determine whether petitioner
was entitled to relief against a dismissal for his late filing,1
via FED. R. APP. P. 4(a)(6).
(Id. at 1.)
The Circuit Court
directed that, in making the above determination, this Court
1
The wording of the relief actually provided by FED. R.
APP. P. 4(a)(6) is the relief of “reopening the time to file an
appeal,” but the effect is the same: the appellant’s appeal is
not dismissed on the ground of untimeliness.
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(Rev.8/82)
should answer the three questions called for by Rule 4(a)(6):
(1) the date when petitioner received notice of this Court’s
June 23, 2011 Order and Judgment dismissing his habeas petition;
(2) whether petitioner’s September 22, 2011 “appeal” of this
judgment was filed within 14 days of his receipt of this Order
and Judgment, or whether he filed an earlier notice of appeal;
and (3) whether any party would be prejudiced.
(Id. at 1-2.)
The undersigned referred this matter to a magistrate judge,
who
appointed
hearing,
and
petitioner
who
has
an
now
attorney,
issued
a
held
an
thorough
evidentiary
Report
and
Recommendation (“R&R”) [142] answering these three questions.
That R&R is now before the Court for its review.
The magistrate judge has recommended an answer to the three
questions as follows: (1) that petitioner received notice of the
June 23, 2011 Order on September 3, 2011; (2) that petitioner
mailed, and therefore filed, his notice of appeal of that Order
on September 7, 2011;2 and (3) that neither party would be
prejudiced, within the meaning of Rule 4(a)(6)(C), by an order
As noted by petitioner in his Objections [144], there
were some typos in the R&R that sometimes referred to the
operative dates as being in 2012 and once referred to an event
as occurring in 2007, when, in fact, all the operative events
on remand occurred in 2011: as the R&R ultimately recognized in
its summary paragraph.
2
2
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reopening the time to file an appeal in this case.
(Id. at 7.)
The Court adopts the magistrate judge’s recommendation as to the
appropriate answers to the Eleventh Circuit’s three questions.
These answers mean that Seibert has satisfied the three
factual predicates for relief under Rule 4(a)(6).
Satisfying
the factual prerequisites for relief under the Rule, however,
does not necessarily mean that petitioner should receive relief,
which question was the overarching question that the Eleventh
Circuit asked.
(Id. at 7-8.)
As the magistrate judge notes in his R&R, a district
court’s decision whether to grant relief for an untimely appeal
is a determination left to that court’s sound discretion.
at 8.)
(Id.
Further, the appellate court should not disturb that
exercise of discretion, even though it might have made a
different call, unless the discretion has been abused.
In
discussing
whether
relief
should
be
(Id.)
granted,
the
magistrate judge acknowledges the district court’s ultimate
discretion in this matter.
The magistrate judge, however,
presents strong reasons why petitioner should not obtain relief,
even
though
the
latter
has
satisfied
3
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the
three
factual
predicates.
Accordingly, he recommends against granting of
relief under Rule 4(a)(6).
(Id. at 8-10.)
Specifically, the magistrate judge notes that petitioner’s
habeas
petition
was
denied
without
prejudice
based
petitioner’s failure to exhaust his state remedies.
on
Thus,
petitioner was free to refile his petition after the conclusion
of those state proceedings.
Moreover, the magistrate judge
notes that the state habeas case remains pending now3–-meaning
that state remedies have still not been exhausted--so it is
unclear how an appeal of this Court’s order will accomplish
anything other than to lead to more unnecessary work for the
Circuit Court.
In short, the magistrate judge concludes, in
effect, that petitioner’s appeal of an order of dismissal
without prejudice is just more “make-work” for the court-system
and that he should not be indulged in this compulsion.
The Court agrees with everything the magistrate judge has
said. Were the Court considering this case on a motion presented
3
The magistrate judge notes that if petitioner has
litigated his state habeas in the same manner he has litigated
the federal habeas petition, it is not surprising that the state
habeas is still ongoing. According to the magistrate judge,
petitioner amended his habeas petition in the present case eight
times and has presented numerous frivolous and duplicative
filings. (Id. at 9 n.4.)
4
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directly to it,4 it would not grant relief.
Indeed, the Court
had already indicated its belief that an appeal would be futile
when
it
originally
denied
a
certificate
of
appealability
(“COA”)at the time it dismissed the case without prejudice.
(See Order dated June 23, 2011 [87] at 2, adopting R&R [79] at
8-10.)
This constructive motion for relief under Rule 4(a)(6),
however, is before the Court on an order of remand by the
Eleventh Circuit.
Presumably, when it remanded the case, the
panel
(1)
was
petitioner
aware:
had
failed
that
this
Court
to
exhaust
his
had
ruled
remedies;
that
(2)
the
that
exhaustion is a requirement under the statute;5 and (3) that
4
Of course, FED. R. APP. P. 4(a)(6) is directed at the
district court, not the appellate court, as that rule calls for
findings by the district court and presumably envisions that a
tardy potential appellant will file a motion for relief under
this provision directly with the district court. Nevertheless,
although the rule may envision that a motion will be filed, in
the first instance, with the district court, not with the
appellate court after a tardy appeal has been filed, appellate
courts reviewing a tardy appeal will frequently deem such a
motion to have been constructively filed by the pro se appellant
and will remand to the district court for a determination. See,
e.g. Gupta v. Walt Disney World Co., 283 Fed. App’x 682, 684
(11th Cir. 2008). That was the procedure followed in this case.
5
28 U.S.C. § 2254(b)(1); Cone v. Bell, 556 U.S. 449, 465
(2009)(recognizing that exhaustion of state remedies prior to
seeking federal habeas relief is a “longstanding requirement”).
5
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this Court had denied a COA, on this basis, concluding that any
appeal would be futile.
As to this Court’s denial of a COA, the issuance of a COA
is a jurisdictional prerequisite to the appellate court hearing
the appeal.
Gonzalez v. Thaler, 565 U.S. ___, 132 S. Ct. 641,
649 (2012)(until a COA has been issued, federal court of appeals
lacks jurisdiction to rule on the merits of appeals from habeas
petitioners).
In other words, if the district court has
declined to grant a COA, the appellate court may not proceed
unless it first determines that a COA should be granted.
Here,
this Court declined to grant a COA, and the Eleventh Circuit
likewise apparently failed to do so as well.
to
it
this
petitioner’s
other
potential
appeal–-the
Having available
jurisdictional
absence
of
a
obstacle
COA--the
to
Circuit
nonetheless chose to focus on the timeliness of the appeal by
remanding this case for a determination of when petitioner
received the order from which he is appealing and when he
actually filed something that could be construed as an appeal.6
6
Clearly, the time limits set out for filing an appeal are
jurisdictional, Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th
Cir. 2001)(time limit within which to appeal is “mandatory and
jurisdictional”).
As noted, the requirement that a COA be
issued before an appellate court can consider the appeal of a
habeas petition is likewise jurisdictional. The Court has not
6
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Such an inquiry is a time-consuming matter for the court to
which it is remanded, and this Court does not assume that the
Eleventh Circuit would have required this Court to perform
unnecessary work.
The Eleventh Circuit presumably wanted this
case back before it for a more substantive review, as otherwise
it could have readily dismissed the appeal based on the absence
of a COA by the district court and by its own concurrence that
expended additional time to research the question of how, when
there are multiple potential jurisdictional bars to an appeal,
the appellate court should choose which bar to examine first.
That is, do some jurisdictional bars take precedence over
others?
Stated another way, does an appellate court have to first
conclude that an appeal is timely before it proceeds to address
other potential jurisdictional bars? That does not appear to
be the practice in the Eleventh Circuit. See United States v.
Masilotti, No. 12-11553, 2013 WL 646375, at *1 n.2 (11th Cir.
Feb. 22, 2013), in which the Eleventh Circuit held that because
the appellants lacked standing, the court did not have to
consider the question whether the appeal had been timely filed.
Assuming that an appellate court has a choice whether to
dismiss an appeal (1) based on an initial conclusion that a COA
is not warranted, which should be a fairly quick decision to
make when dealing with a dismissal without prejudice for
failure to exhaust state remedies, or (2) based on the
possibility that a district court, on remand and after a
hearing, may find facts that would justify excusing the
appellant’s untimely filing of the appeal, interests of judicial
economy would suggest that the first option is clearly
preferable. That the Eleventh Circuit did not do this suggests
that it must have found some merit that this Court did not
discern in petitioner’s habeas petition.
7
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a
COA
was
not
warranted.
That
being
so,
it
would
be
inappropriate for this Court to second-guess that implicit
decision by the Circuit.
Accordingly, the Court concludes that petitioner’s time for
appeal should be reopened for a period of 14 days after the
entry of this Order,7 pursuant to FED. R. APP. P. 4(a)(6).
CONCLUSION
On this limited remand by the Eleventh Circuit, the Court
adopts the magistrate judge’s reasoning and his recommendation
that the three factual questions submitted by the Eleventh
Circuit be answered as follows: (1) petitioner Seibert received
notice of the June 23, 2011 Order on September 3, 2011; (2)
Seibert filed a notice of appeal on September 7, 2011, before
submitting
a
later
pleading
to
the
Eleventh
Circuit,
on
September 22, 2011, referencing his earlier notice of appeal and
requesting a COA from the Circuit Court; and (3) neither party
would be prejudiced by reopening the time to file an appeal.
As to the significance of the above dates, petitioner
received notice of the Court’s June 23, 2011 Order more than 21
7
The Court directs the Clerk to send this Order by
certified mail in an effort to avoid a need to conduct a second
post-mortem as to when petitioner received notification of this
Court’s Order.
8
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days after entry of that Order.
See FED. R. APP. P. 4(a)(6)(A).
Petitioner filed a notice of appeal within 14 days after
receiving notice.
See FED. R. APP. P. 4(a)(6)(B).8
As to the ultimate question to be decided, the Court
determines that the time for reopening petitioner’s appeal,
pursuant to FED. R. APP. P. 4(a)(6), should be granted, this
date.
Petitioner may file a notice of appeal within 14 days of
the entry of this Order, pursuant to FED. R. APP. P. 4(a)(6).9
Finally,
the
Court
concurs
in
the
magistrate
judge’s
recommendation that the Court DENY as moot petitioner’s Motion
to Compel [140], DENY petitioner’s request for relief [133]
under
FED.
R.
CIV.
P.
60(b),
and
DENY
without
prejudice
petitioner’s post-appeal pro se motions [119, 127, 128, 131,
135, 138, and 139].
8
FED. R. APP. P. 4(a)(6)(B) actually requires that the
motion to reopen the time for appeal under this rule be made
within 14 days after notice of the order being appealed or
within 180 days after entry of that order, whichever is earlier.
As far as this Court knows, petitioner has never filed a motion
under
FED. R. APP. P.
4(a)(6);
the
Eleventh
Circuit
constructively filed that motion for him.
Nevertheless,
petitioner’s notice of appeal was filed within the fourteen day
period after he received notice, which necessarily is within the
180-day period of time after entry of the judgment.
9
The Clerk shall send this Order to the petitioner by
certified mail. See supra at n.7.
9
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SO ORDERED this 11th day of MARCH, 2013.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
10
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