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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11992
Non-Argument Calendar
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D.C. Docket No. 6:15-cv-00239-GKS-DCI
BRIAN PHILLIPS,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 12, 2019)
Before MARCUS, ROSENBAUM and JULIE CARNES, Circuit Judges.
PER CURIAM:
Brian Phillips, a Florida prisoner proceeding pro se, appeals the district court’s
denial of his motion to reopen the time to file an appeal under Federal Rule of
Appellate Procedure 4(a)(6), in his habeas corpus action pursuant to 28 U.S.C. §
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2254. On appeal, Phillips argues that: (1) the district court abused its discretion in
denying his Rule 4(a)(6) motion as untimely, because his receipt of the district
court’s December 12, 2016 order -- wherein the court mentioned that his case had
previously been dismissed -- did not constitute formal notice of its order denying his
second amended § 2254 petition, and, consequently, his Rule 4(a)(6) was not due
within 14 days of his receipt of the district court’s December 12, 2016 order but
instead was due within 180 days of the district court’s September 12, 2016 order;
and (2) the district court erred in denying his second amended § 2254 petition, since
the crimes that the State charged and convicted him of were barred by the relevant
statute of limitations. After careful review, we reverse and remand.
The relevant background is this. In April 2015, Phillips filed the instant pro
se § 2254 petition, as twice amended, which the district court denied on September
12, 2016 and entered a formal judgment of dismissal the next day. Phillips did not
appeal that denial, but on December 1, 2016, he submitted to prison authorities for
mailing a motion for leave to amend his second amended § 2254 petition, which the
district court denied on December 12, 2016. That order said only: “The cause before
the Court is Petitioner’s Motion for Leave to Amend (Doc. 25). Upon consideration,
the motion is DENIED. This case was dismissed on September 12, 2016.”
Once again, Phillips did not immediately appeal. But on January 12, 2017, he
submitted to prison authorities for mailing a “Motion to Rescind Order Dismissing
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the Cause on September 12, 2016 or to Reopen this Cause,” wherein he urged the
district court to rescind its September 12, 2016 order denying his second amended §
2254 petition, or, alternatively, to reopen his case, so that he could appeal the denial
of his second amended § 2254 petition. He explained that he had not been notified
of the district court’s September 12, 2016 denial order and only learned of that order
when he received the district court’s December 12, 2016 order denying his motion
to amend or supplement his second amended § 2254 petition, and that -- as the parties
in this appeal agree -- he did not receive any legal mail in either September or
October 2016. The district court denied that motion.
On February 10, 2017, Phillips submitted to prison authorities for mailing the
instant motion to reopen the time to file an appeal under Federal Rule of Appellate
Procedure 4(a)(6). He argued that, because he did not receive proper notice of the
district court’s September 12, 2016 order denying his second amended § 2254
petition, his Rule 4(a)(6) motion was timely because he filed it within 180 days after
the court issued its order. The district court denied his Rule 4(a)(6) motion as
untimely, reasoning that he failed to file it within 14 days of his receipt of its
December 12, 2016 order denying his motion to amend his second amended § 2254
petition, which gave him sufficient notice that his second amended § 2254 petition
had been denied on September 12, 2016. Phillips timely filed a notice of appeal
(“NOA”), designating only the order denying his Rule 4(a)(6) motion for appeal.
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We review the district court’s denial of a motion under Federal Rule of
Appellate Procedure 4(a)(6) for abuse of discretion. McDaniel v. Moore,
292 F.3d
1304, 1305 (11th Cir. 2002). We will not reverse a decision of a district court unless
we determine that the district court made a clear error in judgment or applied an
incorrect legal standard. Weatherly v. Ala. State. Univ.,
728 F.3d 1263, 1270 (11th
Cir. 2013). The Supreme Court has made clear that “[a] district court by definition
abuses its discretion when it makes an error of law.” Koon v. United States,
518
U.S. 81, 100 (1996).
Under the Federal Rules of Appellate Procedure, a notice of appeal in a civil
case “must be filed with the district clerk within 30 days after entry of the judgment
or order appealed from.” Fed. R. App. P. 4(a)(1)(A). Generally, a habeas
petitioner’s failure to file a timely NOA is fatal to his appeal, “because the timely
filing of a [NOA] is mandatory and jurisdictional.” Hollins v. Dep’t of Corr.,
191
F.3d 1324, 1326 (11th Cir. 1999) (quotations omitted). However, the rules provide
that a district court may reopen the time to file an appeal for a period of 14 days if:
(1) the court finds that the moving party did not receive notice of the entry of the
judgment or order being appealed within 21 days after its entry; (2) the motion is
filed within 180 days after the order was entered or within 14 days after the moving
party received notice of the entry, whichever is earlier; and (3) the court finds that
no party would be prejudiced. Fed. R. App. P. 4(a)(6).
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In 2002, a panel of this Court held that a party receives “notice of the entry”
of an order when he receives notice that the order was entered, and a receipt of a
copy of the order is not required.
McDaniel, 292 F.3d at 1306. But, thereafter, the
relevant advisory committee notes explained that Rule 4(a)(6) was amended in 2005
to clarify that only a formal notice of the entry of a judgment or order, as prescribed
by Federal Rule of Civil Procedure 77(d), constitutes proper “notice of the entry” of
a judgment. Fed. R. App. P. 4(a)(6), Advisory Committee note to 2005 amend. The
note explains:
. . . . As amended, [subdivision (a)(6)(A)] will preclude a party from
moving to reopen the time to appeal a judgment or order only if the
party receives (within 21 days) formal notice of the entry of that
judgment or order under Civil Rule 77(d). No other type of notice will
preclude a party . . . .
. . . . Under the 1998 amendment, some type of notice, in addition to
Civil Rule 77(d) notice [or notice from the district court itself],
precluded a party. But the text of the amended rule did not make clear
what type of notice qualified. This was an invitation for litigation,
confusion, and possible circuit splits . . . .
To avoid such problems, former subdivision (a)(6)(B) -- new
subdivision (a)(6)(A) -- has been amended to restore its pre-1998
simplicity. Under new subdivision (a)(6)(A), if the court finds that the
moving party was not notified under Civil Rule 77(d) of the entry of the
judgment or order that the party seeks to appeal within 21 days after
that judgment or order was entered, then the court is authorized to
reopen the time to appeal (if all of the other requirements of subdivision
(a)(6) are met). Because Civil Rule 77(d) requires that notice of the
entry of a judgment or order be formally served under Civil Rule 5(b),
any notice that is not so served will not operate to preclude the
reopening of the time to appeal under new subdivision (a)(6)(A).
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....
. . . . [New subdivision (a)(6)(B)] now makes clear that only formal
notice of the entry of a judgment or order under Civil Rule 77(d) will
trigger the [14]-day period to move to reopen the time to appeal . . . .
....
Using Civil Rule 77(d) notice to trigger the [14]-day period will not
unduly delay appellate proceedings. Rule 4(a)(6) applies to only a
small number of cases -- cases in which a party was not notified of a
judgment or order by either the clerk or another party within 21 days
after entry . . . .
Id. (emphases added). The interpretations in the advisory committee notes, while
not binding, “are nearly universally accorded great weight in interpreting federal
rules.” Horenkamp v. Van Winkle & Co.,
402 F.3d 1129, 1132 (11th Cir. 2005).
And, indeed, Rule 4(a)(6) now specifies that the district court may reopen the time
to appeal when, among other things, “the court finds that the moving party did not
receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the
judgment or order sought to be appealed within 21 days after entry.” Fed. R. App.
P. 4(a)(6)(A). It then provides that the 14-day clock to file an appeal may begin to
run “within 14 days after the moving party receives notice under [Rule 77(d)] of the
entry [of the judgment or order sought to be appealed] . . . .”
Id. 4(a)(6)(B).
Federal Rule of Civil Procedure 77(d), in turn, provides that, “[i]mmediately
after entering an order or judgment, the clerk must serve notice of the entry, as
provided in Rule 5(b), on each party . . . . The clerk must record the service on the
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docket. A party also may serve notice of the entry as provided in Rule 5(b).” Fed.
R. Civ. P. 77(d). And under Rule 5(b), notice of entry is served by: (1) hand
delivering it; (2) leaving it at the party’s office or dwelling; (3) mailing it to the
party’s last known address; (4) leaving it with the court clerk if the party’s address
is unknown; (5) sending it by electronic means if the party has consented to such
method of notice in writing; or (6) delivering it by other means consented to by the
party.
Id. 5(b). Further, Federal Rule of Civil Procedure 79 provides each “entry”
on a civil docket “must briefly show the nature of the paper filed or writ issued, the
substance of each proof of service or other return, and the substance and date of entry
of each order and judgment.”
Id. 79(a)(3).
In this case, the district court abused its discretion in denying Phillips’s Rule
4(a)(6) motion as untimely. Even if, as the district court concluded, Phillips became
aware that the court had entered a September 12, 2016 order denying his second
amended § 2254 petition when he received its December 12, 2016 order, which
denied his motion to amend or supplement his second amended § 2254 petition, that
does not mean he received formal notice of entry of the September 12 order. The
rules contemplate that notice of entry requires the district court clerk to have served
Phillips with notice of the entry of the order immediately after it was entered, see
Fed. R. App. P. 4(a)(6);
id., Advisory Committee note to 2005 amend.; Fed. R. Civ.
P. 77(d), and all parties agree that Phillips did not receive any legal mail in either
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September or October 2016. Thus, Phillips’ case falls into that “small number of
cases” envisioned by the rule -- “cases in which a party was not notified of a
judgment or order by either the clerk or another party within 21 days after entry.”
Fed. R. App. P. 4(a)(6), Advisory Committee note to 2005 amend.
Nor can we say the December 12 order constituted “notice of the entry” of the
district court’s September 12 order. The December 12 order said only: “The cause
before the Court is Petitioner’s Motion for Leave to Amend (Doc. 25). Upon
consideration, the motion is DENIED. This case was dismissed on September 12,
2016.” Though the rules do not define exactly what “notice of entry of a judgment
or order” entails, Rule 79 requires an “entry” to “show the nature of the paper filed
or writ issued, the substance of each proof of service or other return, and the
substance and date of entry of each order and judgment.” Fed. R. Civ. P. 79(a). The
advisory committee notes to Rule 4(a) make clear that notice of entry must come
from the district court clerk or a party, and expressly rejected the provision in the
1998 amendments allowing for notice to come from the district court itself. Fed. R.
App. P. 4(a)(6), Advisory Committee note to 2005 amend. Further, the advisory
committee notes emphasize that only “formal” notice of the entry precludes a party
from moving to reopen the time to appeal.
Id.
Notably, the December 12 order did not include a copy of the September 12
order. Nor, moreover, did it include the entry corresponding to the September 12
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order that appeared on the docket, nor the necessary contents of the entry, including
the nature of the pleading (a second amended petition for writ of habeas corpus),
information concerning proof of service, or the date of entry of the judgment
associated with that order (September 13, 2016). Further, the reference to the
September 12 order came from the district court, not the clerk. On this record, we
think that an ancillary order from the district court that mentions a prior ruling does
not constitute formal “notice under Federal Rule of Civil Procedure 77(d) of the
entry of the judgment or order sought to be appealed.” Fed. R. App. P. 4(a)(6).
According to the committee notes, the thrust of the 2005 amendments was to
promote “simplicity” and to avoid “litigation, confusion, and possible circuit splits”
over the type of notice given. Fed. R. App. P. 4(a)(6), Advisory Committee note to
2005 amend. Requiring the clerk to properly serve Phillips with formal notice of the
entry of the district court order he seeks to appeal -- which, at a minimum, would
include the information contained in a docket entry -- is a clear rule that satisfies the
spirit of the relevant amendments, and gives Phillips the information he needs to
appeal the order in question. See
Horenkamp, 402 F.3d at 1132 (noting that we give
great weight to the interpretations in the advisory committee notes).
In short, the district court legally erred in concluding that the service of its
December 12 order was sufficient to start the 14-day period in which Phillips had to
move to reopen time to appeal under Rule 4(a)(6). Instead, Phillips had 180 days
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from the date the district court entered its order denying his second amended § 2254
petition to file his Rule 4(a)(6) motion, and he filed his motion within that timeframe.
See Fed. R. App. P. 4(a)(6). Because Phillips’ motion to reopen was not untimely
under the rules, we reverse the district court’s denial of Phillips’s Rule 4(a)(6)
motion and remand for further proceedings.
REVERSED AND REMANDED.
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