Marc Anthony Bell v. Larry Mizell and Roland W. Burris

931 F.2d 444, 1991 U.S. App. LEXIS 8209, 1991 WL 68953

Opinion

PER CURIAM.

The notice of appeal was filed 43 days after judgment had been entered, the appellant’s court-appointed counsel having erroneously believed that the 30-day period for appealing the denial of a petition for habeas corpus ran from the issuance of the certificate of probable cause for appeal, which the district judge issued to permit the petitioner to appeal. 28 U.S.C. § 2253; Fed.R.App.P. 4(a)(1). The 30-day period having run, it was too late for the district judge to extend the time for appealing. Fed.R.App.P. 4(a)(5).

Nevertheless, the appeal is timely. The reason is that the application for the certifi cate of probable cause, which the petitioner filed in the district court, just as a formal notice of appeal would have been filed, within 30 days of the judgment, happens to have contained all the information that Fed.R.App.P. 3(c) requires a notice of appeal to contain. The application for a certificate of probable cause should therefore be treated as the notice of appeal. McMillan v. Barksdale, 823 F.2d 981, 983 (6th Cir.1987), so holds, and while the petitioner in that case had no lawyer we do not think this makes a difference. The rules do not prescribe a particular form for a notice of appeal or require that it bear the legend “notice of appeal.” The contents are rigorously prescribed, Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), but the prescription is satisfied by the information in the application for a certificate of probable cause. We do not condone the failure of Bell’s attorney to file a formal notice of appeal in timely fashion — and trust there will be no repetition of the oversight by members of the bar of this court — but it does not deprive Bell of his appellate rights.