United States v. Debbie Hill

826 F.2d 507, 1987 U.S. App. LEXIS 10948
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 22, 1987
Docket86-2172
StatusPublished
Cited by28 cases

This text of 826 F.2d 507 (United States v. Debbie Hill) 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
United States v. Debbie Hill, 826 F.2d 507, 1987 U.S. App. LEXIS 10948 (7th Cir. 1987).

Opinion

EASTERBROOK, Circuit Judge.

Convicted of several drug offenses, Debbie Hill received a total of three years’ imprisonment and five years’ probation. We affirmed her conviction, United States v. Keck, 773 F.2d 759 (7th Cir.1985), and issued our mandate on October 9, 1985. Hill had until February 6, 1986, to file a motion under Fed.R.Crim.P. 35(b) for a reduction of sentence.

On February 28, 1986, Hill sent the district judge a letter asking what had become of her motion to reduce her sentence. The court did not have a record of any motion and directed Hill to furnish the court with a copy. Hill then hired a new attorney, who filed a motion under Rule 35 on May 7. The parties have assumed, as shall we, that Hill’s first attorney did not file a motion, despite telling Hill he would.

The district court dismissed the second attorney’s motion as untimely. Un *508 timely it was, for Rule 35(b) grants only 120 days in which to file, and Fed.R.Crim.P. 45(b) forbids the enlargement of this period. The 120-day period is jurisdictional. United States v. House, 808 F.2d 508, 509 (7th Cir.1986); Haase v. United States, 800 F.2d 123, 129 (7th Cir.1986). Under a former version of Rule 35(b), the 120 days was a limit on the judge’s power to reduce the sentence. United States v. Kimberlin, 776 F.2d 1344, 1346 (7th Cir.1985); Gaertner v. United States, 763 F.2d 787 (7th Cir.1985). Now only the filing deadline is jurisdictional. Either way, Rule 45(b) establishes that the deadline is inflexible. See United States v. Addonizio, 442 U.S. 178, 189 & n. 17, 99 S.Ct. 2235, 2242-43 & n. 17, 60 L.Ed.2d 805 (1979) (dictum); United States v. Robinson, 361 U.S. 220, 224-25, 80 S.Ct. 282, 285-86, 4 L.Ed.2d 259 (1960) (dictum). See also United States v. Jackson, 802 F.2d 712, 714 (4th Cir.1986). Hill missed the deadline, and missing a jurisdictional deadline deprives the court of power to act. Browder v. Director, Department of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Stelpflug v. Federal Land Bank, 790 F.2d 47 (7th Cir.1986); Bailey v. Sharp, 782 F.2d 1366 (7th Cir.1986).

The most Hill can say is that her attorney was negligent, maybe even misled her. But neglect or misconduct by an attorney cannot give the court a power it lacks. An attorney who misses a statute of limitations does not thereby extend or toll the statute. And Rules 35(b) and 45(b) are not a simple statute of limitations; they limit the court’s jurvisdiction. Cf. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392-98, 102 S.Ct. 1127, 1132-35, 71 L.Ed.2d 234 (1982) (discussing the difference between jurisdictional and non-jurisdictional time limits). In Robinson the Supreme Court held that an attorney’s “excusable neglect” could not justify extending the time within which to file a criminal appeal, which then was governed by the no-extension principle contained in Rule 45(b). Robinson’s construction of Rule 45(b) controls, for that rule governs motions under Rule 35(b).

Occasionally the Supreme Court has held that a mistake by the judge or some other public official adds to periods of time despite inflexible rules. In Fallen v. United States, 378 U.S. 139, 143, 84 S.Ct. 1689, 1692, 12 L.Ed.2d 760 (1964), for example, the Court held that a prisoner’s notice of appeal was timely because entrusted to prison officials with time left over, even though the prison officials did not get the notice filed within the ten days. And in Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964), a civil case, the Court concluded that if the district judge assures counsel that action by a particular date will be effective, counsel does not forfeit the appeal by acting on the advice he has received. These cases are not in robust health in light of intervening developments, on which see Sonicraft, Inc. v. NLRB, 814 F.2d 385, 387 (7th Cir.1987), and Bailey, 782 F.2d at 1369-74 (concurring opinion), but they never had much to offer Hill. The Supreme Court has not held or even hinted that a defendant’s own neglect, or that of his lawyer, extends a jurisdictional time limit. We held in Bailey that a lawyer’s failure to appreciate that a district court could not extend a time limit meant that the court’s grant of an extension was ineffectual. Clients regularly are bound by the acts and omissions of their lawyers, Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 608-09 (7th Cir.1986); Tolliver v. Northrop Corp., 786 F.2d 316, 319 (7th Cir.1986) (collecting cases), and must look to their lawyers rather than their adversaries for satisfaction. This is so in criminal as well as civil litigation. E.g., Murray v. Carrier, - U.S. -, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

Nothing changes if Hill’s first attorney told her he had filed a motion. The principle that counsel cannot enlarge the court’s jurisdiction still controls. Some courts treat a lawyer’s dissembling about the filing of a notice of appeal from a conviction as ineffective assistance of counsel. Cf. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). They rectify this by turning the collateral attack into a belated appeal. Compare Mack v. Smith, 659 F.2d 23, 25-26 (5th Cir.1981), with United States v. Winterhalder, 724 *509 F.2d 109 (10th Cir.1983).

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Bluebook (online)
826 F.2d 507, 1987 U.S. App. LEXIS 10948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-debbie-hill-ca7-1987.