Zachary Smith v. Secretary, Department of Corrections

Opinion

[DO NOT PUBLISH]

In the

United States Court of Appeals For the Eleventh Circuit

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No. 25-11705

Non-Argument Calendar

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ZACHARY O. SMITH, Petitioner-Appellant,

versus SECRETARY, DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

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Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 2:23-cv-01032-SPC-KCD

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2 Opinion of the Court 25-11705

Before JORDAN, LUCK, and LAGOA, Circuit Judges. PER CURIAM:

This appeal is DISMISSED, sua sponte, for lack of jurisdiction . Zachary O. Smith, pro se, appeals from the district court’s final order and February 10, 2025, judgment denying his habeas corpus petition. The 30-day statutory time limit required Smith to file a notice of appeal on or before March 12, 2025. See 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A); Green v. Drug Enf’t Admin., 606 F.3d 1296, 1300-01 (11th Cir. 2010). However, Smith did not deliver the operative notice of appeal to prison authorities for mailing until April 15, which was too late to invoke our appellate jurisdiction . See Fed. R. App. P. 4(c)(1); Green, 606 F.3d at 1300-01.

Nevertheless, upon review of the record below, the district court is DIRECTED to transmit to this Court Smith’s filing titled “Petition for Permission to Appeal,” docketed on March 14, 2025, as a “Motion for Certificate of Appealability,” as a notice of appeal from the district court’s final order and judgment. We construe that filing as a timely notice of appeal. See Rinaldo v. Corbett, 256 F.3d 1276, 1278-80 (11th Cir. 2001) (explaining that a document may be construed as a notice of appeal when (1) the document serves the functional equivalent of a notice of appeal, and (2) the document “specifically indicate[s] the litigant’s intent to seek appellate review”); Smith v. Barry, 502 U.S. 244, 248-49 (1992) (“If a document filed within the time specified by [Federal] Rule [of Appellate Procedure] 4 gives the notice required by Rule 3, it is effective

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25-11705 Opinion of the Court 3

as a notice of appeal.”). Upon receiving that construed notice of appeal from the district court, the Clerk shall open a new appeal.