Carter v. Hodge

726 F.3d 917, 86 Fed. R. Serv. 3d 74, 2013 WL 4022531, 2013 U.S. App. LEXIS 16664
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 8, 2013
DocketNo. 13-2243
StatusPublished
Cited by15 cases

This text of 726 F.3d 917 (Carter v. Hodge) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carter v. Hodge, 726 F.3d 917, 86 Fed. R. Serv. 3d 74, 2013 WL 4022531, 2013 U.S. App. LEXIS 16664 (7th Cir. 2013).

Opinion

POSNER, Circuit Judge.

The routine screening of appeals that the court’s staff conducts to make sure an appeal is -within this court’s appellate jurisdiction has flagged a significant issue of timeliness.

Michael Carter is an Illinois prison inmate whose petition for habeas corpus under 28 U.S.C. § 2254, originally filed elsewhere, was transferred to the Northern District of Illinois in June of 2010. On December 5 of the following year, having heard nothing about the status of his case, Carter inquired of the clerk’s office. The office responded: “Status request: As of this date, the Court has taken no further action on the requested case. When an order is entered, you will be promptly notified by mail.” The response was incorrect; the district court had denied Carter’s petition for habeas corpus on February 10, 2011, following the issuance of an opinion by the district judge the previous day. Carter v. Ryker, No. 10 C 3783, 2011 WL 589687 (N.D.Ill. Feb. 9, 2011). The opinion was not sent or otherwise made available to Carter.

After hearing nothing further from the district court for more than a year, Carter again wrote the clerk and this time was correctly informed by a letter that he received on March 22 of this year that his petition had been denied two years ago, in February 2011. On April 16, fewer than 30 days after receiving the information from the district court clerk, he filed a notice of appeal and a petition for a certificate of appealability. The district court did not docket his papers until May 31. But April 16, the date on which Carter submitted them to the prison authorities for mailing, is the official filing date of his notice of appeal. Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); Fed. R.App. P. 4(c)(1).

Rule 4(a)(6)(7) of the appellate rules permits a district court to reopen the time to appeal if as in this case the litigant did not receive, within 21 days of the judgment that he wants to appeal from, notice of that judgment. But the litigant must request this relief no later than 180 days after the judgment is rendered or 14 days after he receives notice of the judgment under Fed. R.Civ.P. 77(d) (which requires service on the litigant), whichever comes first. Fed. R.App. P. 4(a)(6)(B); see also 28 U.S.C. § 2107(c). Because the district judge failed to set out his judgment denying the petition for habeas corpus in a separate document as required by Fed.R.Civ.P. 58(a) (despite our repeated reminders that district courts must comply with the rule, see, e.g., Rush University Medical Center v. Leavitt, 535 F.3d 735, 737 (7th Cir.2008); Otis v. City of Chicago, 29 F.3d 1159, 1163 (7th Cir.1994) (en banc); Armstrong v. Ahitow, 36 F.3d 574, 575 (7th Cir.1994) (per curiam)), Rule 58(c)(2)(B) (and also Fed. R.App. P. 4(a)(7)(A)(ii)) deemed the judgment to have been rendered 150 days after the denial of the petition was entered on the district court’s docket: hence on July 11, 2011.

Analysis is slightly complicated by the fact that the judge did promptly make a minute entry of his dismissal of Carter’s petition for habeas corpus on the district court’s docket. We have suggested that such a notation might satisfy Rule 58. Nocula v. UGS Corp., 520 F.3d 719, 724 (7th Cir.2008); Properties Unlimited, Inc. Realtors v. Cendant Mobility Services, 384 F.3d 917, 919-20 (7th Cir.2004). Other courts have disagreed. See, e.g., Transit Management of Southeast Louisiana, Inc. [919]*919v. Group Insurance Administration, Inc., 226 F.3d 376, 382 (5th Cir.2000); Yourish v. California Amplifier, 191 F.3d 983, 987-88 (9th Cir.1999). No matter; as in Perry v. Sheet Metal Workers’ Local No. 73 Pension Fund, 585 F.3d 358, 361-62 (7th Cir.2009), the appellee has conceded in his jurisdictional memorandum that no Rule 58(a) judgment was entered..

The 180-day limit on requesting the district court to reopen the time in which to appeal (in this case 180 days after the 150 days after the district court’s decision) was reached on January 7, 2012, at a time when Carter had been led to believe, just a month earlier, that his petition for habeas corpus was still pending. Had he received timely notice of the denial of his petition, he could have sought under Rule 4(a)(6) of the appellate rules to reopen the time within which to appeal that denial. He never did move to reopen; and even if we treated his April 16 filings as such a motion, the motion would have been untimely.

But Carter is saved by equitable tolling — “the judge — made doctrine, well established in federal common law, that excuses a[n unjtimely filing when the plaintiff could not, despite the exercise of reasonable diligence, have discovered all the information he needed in order to be able to file his claim on time,” Taliani v. Chrans, 189 F.3d 597 (7th Cir.1999), provided that he acted promptly once he finally got the information. Yuan Gao v. Mukasey, 519 F.3d 376, 379 (7th Cir.2008). Carter meets all these conditions. But we must decide whether the doctrine is applicable.

It isn’t applicable to jurisdictional deadlines, which deadlines for filing notices of appeal have been held to be. Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007); Socha v. Pollard, 621 F.3d 667, 670 (7th Cir.2010). That exception is in tension with the prevailing modern view that, as we put it in In re IFC Credit Corp., 663 F.3d 315, 319 (7th Cir.2011), federal subject-matter jurisdiction is “about the competence of the tribunal — ‘competence’ in the sense of legal empowerment to decide a case — rather than about the mistakes that litigants and sometimes judges make in a case that is within the tribunal’s competence.” See Kontrick v. Ryan, 540 U.S. 443, 454-55, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004);

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Bluebook (online)
726 F.3d 917, 86 Fed. R. Serv. 3d 74, 2013 WL 4022531, 2013 U.S. App. LEXIS 16664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-hodge-ca7-2013.