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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10606
Non-Argument Calendar
________________________
D.C. Docket Nos 1:16-cv-23062-PCH,
1:03-cr-20129-PCH-1
NEVIA ABRAHAM,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 28, 2020)
Before WILSON, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
In February 2018, the district court denied Nevia Abraham’s second
28
U.S.C. § 2255 motion and issued a certificate of appealability (COA) on the issue
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of whether Abraham could challenge his sentence under the Armed Career
Criminal Act (ACCA). At the time, Abraham was represented by the Federal
Public Defender’s (FPD) office. A copy of the order was mailed to Abraham and
counsel in February 2018. Counsel did not file a notice of appeal, nor did she
communicate further with Abraham. She ultimately terminated her employment
with the FPD’s Office in late 2018. In November 2018, Abraham learned that no
appeal was pending when he contacted the Clerk in this court seeking to expand
the COA. Abraham then filed, through counsel, a motion in district court under
Fed. R. Civ. P. 60(b), asserting that a timely notice of appeal was not filed due to
excusable neglect. The district court granted the Rule 60(b) motion and reentered
its February 2018 order denying Abraham’s motion to vacate and granting a COA.
Abraham filed a notice of appeal.
We ordered the parties to address whether we have jurisdiction to review the
2019 order granting Abraham’s Rule 60(b) motion and reentering the denial of his
§ 2255 motion. Abraham argues that his attorney abandoned him, and he cannot
be held responsible for his attorney’s conduct under Maples v. Thomas,
565 U.S.
266 (2012). Further, he asserts that the district court relied on Rule 60(b)(6),
which, he claims, allows the district court to grant reopening of a final judgment
upon a finding of extraordinary circumstances. The government responds that we
lack jurisdiction because Rule 60(b) cannot cure an untimely appeal and argues
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that Maples does not apply to a statutory, jurisdictional deadline. We agree with
the government and dismiss the appeal for lack of jurisdiction.
I
We review de novo the interpretation of the rules of federal procedure and
jurisdictional issues. United States v. Lopez,
562 F.3d 1309, 1311 (11th Cir. 2009).
We review for abuse of discretion the grant or denial of a motion for relief from
judgment under Rule 60(b). See Maradiaga v. United States,
679 F.3d 1286, 1291
(11th Cir. 2012).
II
“Federal Rule of Appellate Procedure 4(a) prescribes strict time limits for
filing a notice of appeal after entry of a final judgment or order by the district
court.” Vencor Hosps., Inc. v. Standard Life & Accident Ins. Co.,
279 F.3d 1306,
1308 (11th Cir. 2002). In a civil case where the United States is a party, the
appellant must file a notice of appeal no later than 60 days after the challenged
order or judgment is entered on the docket. Fed. R. App. P. 4(a)(1)(B)(i). A
district court may not extend the time to file a notice of appeal, except as
authorized by Rule 4. Fed. R. App. P. 26(b); see Fed. R. App. P. 4(a)(5)
(permitting a district court to extend the time to file a notice of appeal for
excusable neglect or good cause if a motion is filed within 30 days after the initial
period expires); Fed. R. App. P. 4(a)(6) (allowing a district court to reopen the time
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to file an appeal if a party entitled to receive notice of the judgment or order fails to
receive such notice).
The statutory time limit for filing a notice of appeal is a jurisdictional
requirement in civil cases. Bowles v. Russell,
551 U.S. 205, 214 (2007). Thus,
“[f]ailure to comply with a jurisdictional time prescription . . . deprives a court of
adjudicatory authority over the case, necessitating dismissal.” Hamer v.
Neighborhood Hous. Servs. of Chicago,
138 S. Ct. 13, 17 (2017). The Supreme
Court has held that courts have “no authority to create equitable exceptions to
jurisdictional requirements.” Bowles,
551 U.S. at 213–14 (overruling the “unique
circumstances” doctrine, which allowed a petitioner to file an untimely notice of
appeal if the court affirmatively misled him).
In contrast, procedural default is not jurisdictional, but rather is an
affirmative defense that is subject to waiver by the government. See Howard v.
United States,
374 F.3d 1068, 1073 (11th Cir. 2004) (concluding that a § 2255
movant’s claim was “procedurally barred, unless the government is itself barred
from raising that affirmative defense”). In Maples, the Supreme Court held that a
28 U.S.C. § 2254 petitioner had presented extraordinary circumstances to excuse
the procedural default of his claim because his attorney had completely abandoned
him and failed to appeal the denial of his state postconviction relief petition.
565
U.S. at 271, 289.
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Rule 60(b) provides that a district court “may relieve a party or its legal
representative from a final judgment, order, or proceeding” because of “mistake,
inadvertence, surprise, or excusable neglect,” . . . or “any other reason that justifies
relief.” Fed. R. Civ. P. 60(b)(1), (6). We have acknowledged the “well-recognized
rule [that] precludes the use of a Rule 60(b) motion as a substitute for a proper and
timely appeal.” Cavaliere v. Allstate Ins. Co.,
996 F.2d 1111, 1115 (11th Cir.
1993); see also Jackson v. Crosby,
437 F.3d 1290, 1296 (11th Cir. 2006)
(affirming that an appellant generally cannot “gain a second chance at a timely
appeal through the use of a Rule 60(b) motion”); but see Harnish v. Manatee Cty.,
783 F.2d 1535, 1538 (11th Cir. 1986) (affirming, before the Supreme Court’s
decision in Bowles, the district court’s grant of a Rule 60(b) motion to reopen the
time to appeal, where the parties failed to receive actual notice of the judgment
until after the time for appeal had passed, and the moving party had relied upon
express assurances from the court that no judgment had been entered).
III
Because the statutory time limit for filing a notice of appeal is jurisdictional,
we have no authority to create an equitable exception to that requirement. See
Bowles,
551 U.S. at 213–14. Thus, Abraham is not entitled to relief under Maples
based on extraordinary circumstances regarding his counsel’s negligence. See
565
U.S. at 289. Moreover, our prior precedent generally prohibits granting relief
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under Rule 60(b) solely for the purpose of reentering the judgment and restarting
the time to appeal. See Cavaliere,
996 F.2d at 1115; Jackson,
437 F.3d at 1296.
Accordingly, we lack jurisdiction to review the February 2018 denial of
Abraham’s second § 2255 motion, notwithstanding the district court’s February
2019 order granting his Rule 60(b) motion and reentering the judgment. We
therefore dismiss Abraham’s appeal for lack of jurisdiction.
DISMISSED.
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