Jerry Lewis Myers v. Linwood v. Stephenson Attorney General of the State of North Carolina, Rufus L. Edmisten

748 F.2d 202, 40 Fed. R. Serv. 2d 435, 1984 U.S. App. LEXIS 16999

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 5, 1984
• Docket: 84-6049
• Status: Published

Opinions

SPROUSE, Circuit Judge:

We consider whether our decision in Shah v. Hutto, 722 F.2d 1167 (4th Cir.1983) requires the dismissal of Jerry Myers’ appeal as untimely filed. Myers appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition. He contended in the district court and contends here that (1) his guilty plea to burglary charges in North Carolina state court was induced by his lawyer’s misrepresentations concerning the probable length of his sentence and (2) North Carolina’s indeterminate sentencing statute was being used to punish black defendants more severely than similarly-situated whites. The district court dismissed his petition on May 27, 1983, the same day it was filed, after concluding that all of Myers’ claims were mer-itless. (The district court did not, however, specifically address in its memorandum order the two issues pressed on appeal.) The state, of course, agrees with the district court’s finding that Myers’ claims were devoid of merit, but its principal argument on this appeal is that we are without jurisdiction to consider the appeal because it was untimely filed under our ruling in Shah v. Hutto. Because we cannot determine factually if the appeal was timely filed, we remand for further fact-finding by the district court.

The last day that an appeal from the district court’s decision dismissing the petition could be timely filed without an extension was June 27, 1983.¹ Fed.R.App.P. 4(a)(1). Myers mailed his notice of appeal from Caledonia Correctional Institute at Tillery, North Carolina, on either June 17 or June 21, 1983,² addressing the envelope to the “United States District Court for the Middle District of N.C. Winston-Salem Division.” He failed to include a street address or to designate the clerk as the recipient. Although the main office of the clerk of the Middle District is located at the court office in Greensboro, the mailing to the Winston-Salem Division would satisfy Rule 4(a)(1) if it was received there within the required 30 day period. There is an unresolved question of fact, however, as to the date his notice of appeal was actually received in the Winston-Salem Division.

The only tangible clues in the record as to when the notice of appeal actually was received by the Winston-Salem Division are two postmarks on the face of the envelope in which the notice was mailed. They indicate that the envelope was handled by the post office in Winston-Salem on both June 28 and June 30. The post office there delivered the material to the Winston-Salem District Court office which returned it to the post office for forwarding to Greensboro. The exact time of delivery to the Winston-Salem Division of the district court is not known because court officials inexplicably neglected to stamp the receipt date on either the envelope or the notice of appeal. The record is also silent with regard to the actual handling of Myers’ notice of appeal once it reached the Winston-Salem office. We know for certain only that someone in the Winston-Salem division eventually forwarded the notice of appeal to the court’s main office at Greensboro,' where it was marked with a filing stamp as “Received in this office on July 5, 1983,” a full fourteen days after it was mailed from Caledonia prison by Myers. The district court, relying on the date impressed by the filing stamp rather than the actual daté of receipt in its Winston-Salem division, treated Myers’ notice of appeal as untimely. Following the procedures announced in Craig v. Garrison, 549 F.2d 306 (4th Cir. 1977), the district court automatically construed Myers’ notice of appeal as a motion for an extension of time under Fed.R. App.P. 4(a)(5), sua sponte made a finding that the delay was excusable, and authorized the filing of the appeal.

I.

The district court’s action in construing Myers’ purportedly untimely notice of appeal as a motion for an extension of time under Fed.R.App.P. 4(a)(5) was in accord with the procedures this court sanctioned in Craig v. Garrison. As we recently recognized in Shah v. Hutto, however, the 1979 amendments to Fed.R.App.P. 4(a) have changed the way district courts are to treat untimely notices of appeal from pro se litigants.³ These amendments do not distinguish between the pro se litigant pursuing his appeal from behind the prison walls and the individual positioned to draw upon the assistance of counsel. Both categories of litigants must adhere to the strict jurisdictional predicates of Fed.R.App.P. 4(a) in order to preserve issues for appellate consideration. They must file their notices of appeal within thirty days of judgment and can perfect a filing only by following the precise requirements of the applicable rule. Moreover, “[a] bare notice of appeal ... where no request for additional time is manifest,” no longer may be construed automatically as a motion for an extension of time for the pro se litigant. Shah v. Hutto, 722 F.2d at 1168-69. The relevant filing period for all appellants, pro se or otherwise, can be extended only by explicitly requesting an extension of time in accordance with F.R.App.P. 4(a)(5).

The district court in the case now before us did not have the benefit of Shah’s interpretation of the 1979 amendments to the Federal Rules of Appellate Procedure when it allowed the filing of Myers’ notice of appeal. Consistent with the procedures it believed were in effect, the district court saw no need to develop the factual record regarding the time Myers’ notice of appeal was actually received in the Winston-Salem Division. The district court treated Myers’ notice of appeal as untimely because the clerk’s stamp showed that it was received in the Greensboro offices of the United States District Court for the Middle District of North Carolina on July 5, 1983, eight days after the filing period closed. The court found it unnecessary to delve deeper for the simple reason that it allowed the appeal to be filed anyway under the procedures announced in Craig.

Our decision in Shah, however, makes the date Myers’ notice of appeal was received in Winston-Salem important to a determination of his entitlement to appellate consideration of his claims. Since both postmarkings on the envelope containing the notice of appeal are after June 27, the last day for a timely filing, court officials in Winston-Salem may not have received the notice within the 4(a)(1) thirty-day period. On the other hand, because it is unclear how long Winston-Salem court personnel may have held the notice before forwarding it to Greensboro, it is possible that the notice reached Winston-Salem days before the June 28/June 30 postmarking dates. The two postmarkings suggest the possibility that postal or court personnel erred in handling the envelope. This explanation gains credence from the fact that the envelope was mailed at least six days before the date of the first Winston-Salem postmark and contains an address addendum in the handwriting of an unidentified person presumably in the employ of either the court clerk’s office or the post office. See, e.g., Da’Ville v. Wise, 470 F.2d 1364, 1365 (5th Cir.) (on facts similar to instant case, court held appellee failed to show notice of appeal untimely and reached merits), cert. denied, 414 U.S. 818, 94 S.Ct. 170, 38 L.Ed.2d 50 (1973).

We are not prepared to allow speculation on this issue to replace appropriate fact-finding, particularly. when the consequences for the appellant are so final. Myers has raised serious constitutional questions concerning the voluntariness of his guilty plea and the fairness of his sentence. The jurisdictional tangle in which he finds himself may ultimately preclude this court from reaching the merits of his claims, but not before we have resolved the confusion surrounding the timeliness of his appeal. We, therefore, remand this case to the district court for appropriate fact-finding to determine the date the notice of appeal was received at the Winston-Salem office.

II

Even if the district court’s inquiry on remand reveals that Myers’ notice of appeal was untimely filed, however, Shah does not necessarily require that this appeal be dismissed. The prisoners in Shah filed their notices of appeal one day after the thirty-day time period. The period for gaining an extension passed without action by the prisoners or the district court to preserve appellate jurisdiction. Here, in contrast, the district court sua sponte found excusable neglect for the untimeliness of Myers’ notice of appeal within the time frame required by Fed.R.App.P. 4(a)(5), and ordered the clerk to file the notice of appeal. At the time the district court entered its order allowing his appeal, Myers still had four days to file a motion for an extension of time under Rule 4(a)(5). He might have taken this step and perfected his appeal rights had not the district court given its assurance that his appeal would be filed out-of-time because of excusable neglect. To the extent Myers’ failure to request an extension is attributable to the district court’s assurance, he may be entitled to appellate consideration of his claims in spite of his failure to comply fully with the provisions of Fed.R.App.P. 4(a)(5). Thompson v. Immigration & Naturalization Service, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964) (per curiam); Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962) (per curiam); Webb v. Dep’t of Health & Human Services, 696 F.2d 101, 104-06 (D.C.Cir.1982); Hernandez-Rivera v. Immigration & Naturalization Service, 630 F.2d 1352, 1354-55 (9th Cir.1980); Chipser v. Kohlmeyer & Co., 600 F.2d 1061, 1063 (5th Cir.1979). We reserve a decision on this issue, however, until it has been conclusively determined that Myers’ notice of appeal was untimely filed and the record concerning the handling of Myers’ notice of appeal is more fully developed.

Accordingly, we remand to the district court for the purpose of holding an eviden-tiary hearing to determine (1) when Myers’ notice of appeal was actually received by court officials in Winston-Salem, and, if appropriate, (2) whether Myers failed to request an extension of time under Fed.R. App.P. 4(a)(5) because he had knowledge that the district court was treating his notice of appeal as a motion for an extension of time.

REMANDED.

1 . The thirty-day appeal period technically expired on June 26, 1983, but because this date fell on a Sunday, Myers’ notice of appeal was not due until June 27. See, e.g., Hegler v. Bd. of Educ. of Bearden School Dist., 447 F.2d 1078, 1080 (8th Cir.1971).

2 . In representations to this court, Myers states that he actually deposited his notice of appeal in the mail on June 17, 1983. Prison records, however, indicate the letter was not placed in the mail until June 21, 1983. This, however, is not the factual dispute that must be resolved on remand. Both dates of deposit are well within the thirty-day appeal period, so the determination of the specific date of mailing is not necessary for our decision. It is the date which the appeal was received by the district court that controls. Pryor v. Marshall, 711 F.2d 63, 65 (6th Cir.1983); Aldabe v. Aldabe, 616 F.2d 1089, 1091 (9th Cir.1980).

3 . Myers argues that Shah v. Hutto, 722 F.2d 1167, overruled longstanding procedures in this circuit, and thus should be applied prospectively in order to avoid hardship to pro se litigants who relied on those earlier procedures. In a strict legal sense, Myers’ argument is grounded on an erroneous premise. Shah did not overrule longstanding procedures; it simply confirmed a change in the law brought about by the 1979 amendments to the Federal Rules of Appellate Procedure. See, e.g., Pryor v. Marshall, 711 F.2d 63 (6th Cir. 1983); Brooks v. Britton, 669 F.2d 665 (11th Cir.1982); Pettibone v. Cupp, 666 F.2d 333 (9th Cir.1981); Wyzik v. Employee Benefit Plan of Crane Co., 663 F.2d 348 (1st Cir. 1981); Mayfield v. United States Parole Commission, 647 F.2d 1053 (10th Cir.1981). The possibility exists, of course, that some pro se litigants may have mistakenly relied on Craig v. Garrison, 549 F.2d 306 (4th Cir. 1977), after the 1979 amendments. Although we are not unsympathetic to their plight, we do not believe that the possibility of such reliance in individual cases warrants a blanket decision limiting the rule of Shah to future litigants alone. A change in the law is often assumed to apply to all cases pending on appeal unless otherwise indicated by the enunciating tribunal. N.S.C. Contractors, Inc. v. Twin Parks Limited Partnership (In re Twin Parks Limited Partnership), 720 F.2d 1374, 1376-77 (4th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1602, 80 L.Ed.2d 132 (1984). The change in the law in this case is traceable to the 1979 amendments and consequently must be applied to Myers and other pro se litigants presently before this court. But see Sanchez v. Bd. of Regents of Texas S. Univ., 625 F.2d 521, 523 (5th Cir. 1980) (prospective application only).