Lancaster v. Presley ( 1994 )

United States Court of Appeals,
Fifth Circuit.
No. 94-60378
Summary Calendar.
Jimmy LANCASTER, Petitioner-Appellant,
v.
Dwight PRESLEY, et al., Respondent-Appellee.
Oct. 18, 1994.
Appeal from the United States District Court for the Northern
District of Mississippi.
Before DUHÉ, WIENER and STEWART, Circuit Judges.
DUHÉ, Circuit Judge.
Pro Se Appellant Jimmy Lancaster (Lancaster) appeals from the
denial of his motion for relief from judgment or order pursuant to
Federal Rule of Civil Procedure 60(b). We affirm.
I. FACTS
On June 19, 1982, Jimmy Lancaster was convicted of capital
murder in Mississippi state court, and sentenced to life in prison.
The Mississippi Supreme Court affirmed his conviction. Lancaster
v. State, 472 So. 2d 363, 368 (Miss.1985).
In July of 1987, Lancaster's counsel sought a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. In March of 1989, a
Magistrate Judge recommended that the habeas petition be denied.
R. at 23. Lancaster failed to object, and the district court
adopted the magistrate's recommendation. Id. at 38.
In May 1989, Lancaster's counsel filed a notice of appeal with
the district court, and, on August 28, 1989, he filed his brief
1
with this Court. On December 5, 1989, this court struck
Appellant's brief for failure to conform with Federal Rule of
Appellant Procedure 28(g) and Fifth Circuit Local Rule 28.1.
Lancaster's counsel failed to file an amended brief to cure the
procedural defects, and we ordered the appeal dismissed for failure
to prosecute on March 28, 1990. We denied Appellant's motion for
enlargement of time to file his brief on May 7, 1990.
In June 1991—fifteen months after the appeal had been
dismissed, and sixteen months after the last communication from his
attorneys—Lancaster wrote to this Court to inquire as to the status
of his appeal. Less than a week later, our Court Clerk informed
Lancaster that his appeal had been dismissed in March of the
previous year.
Over the next eighteen months Lancaster attempted to locate
counsel to prosecute his appeal. He initially tried,
unsuccessfully, to contact his previous attorneys. Next, Lancaster
sought assistance within the inmate community. In February 1992,
Lancaster located an inmate who claimed to have the requisite
understanding to handle his cause, however, this inmate could not
provide assistance for two or three months. In May 1992, with the
assistance of new "counsel," Lancaster attempted to retrieve his
file and records from his previous attorneys. The file and records
were finally obtained in December 1992.
On December 29, 1992, over two-and-a-half years after
dismissal of his appeal, Lancaster filed in the district court a
Rule 60(b) motion to vacate or set aside its judgment denying him
2
habeas relief. In November 1993, the district court denied
Appellant's motion. R. at 84. Lancaster petitioned the district
court in January 1994 for leave to appeal the court's order out of
time. R. at 92. The district court granted leave to file the
appeal and a Certificate of Probable Cause, on May 25, 1994. R. at
105 and 107. Notice of this appeal was filed nunc pro tunc January
12, 1994. R. at 108.
II. STANDARD OF REVIEW
We employ an abuse of discretion standard in our review of
the district court's denial of Appellant's Rule 60(b)(6) motion.
Pease v. Pakhoed Corp., 980 F.2d 995, 998 (5th Cir.1993). "To
overturn the district court's denial of this 60(b) motion, it is
not enough that a grant of the motion might have been permissible
or warranted; rather, the decision to deny the motion must have
been sufficiently unwarranted as to amount to an abuse of
discretion." Fackelman v. Bell, 564 F.2d 734, 736 (5th Cir.1977).
III. DISCUSSION
In his Rule 60(b)(6) motion, Lancaster petitioned the
district court to set aside its April 1989 order denying his
application for writ of habeas corpus. The petition asked the
district court, after vacating the previous order, to file a new
order again denying the writ, thereby affording him the opportunity
to file a timely appeal. Appellant asserted that such action
would be a proper exercise of this Court's discretion to grant
the relief sought because Petitioner Lancaster's appeal to the
Fifth Circuit was dismissed due to gross negligence on the
part of his attorneys with him being neither aware of their
conduct nor participating in it in any way. Through no fault
of his own, Petitioner Lancaster has been deprived of his
3
right to appeal and his day in court in the appellate court to
which he was appealing.
R. at 52.
On its face, Lancaster's petition violates a fundamental tenet
of this Circuit's construction of Rule 60(b), i.e., Rule 60(b)
cannot be used to extend the time to appeal.1 The fact that
Appellant lacked contemporaneous knowledge of the entry of
dismissal is not material to this issue. Cf. Wilson v. Atwood
Group, 725 F.2d 255, 256-58 (5th Cir.1984) (en banc), cert.
dismissed, 468 U.S. 1222, 105 S. Ct. 17, 82 L. Ed. 2d 912 (1984) ("We
have consistently held that the simple failure of the clerk to mail
notice of the entry of judgment, without more, does not permit
relief to a party who has failed to appeal within the prescribed
time").2
1
"This Court has ... repeated and firmly held that Rule
60(b) cannot be used to extend the time for appeal." The purpose
behind that firm rule is explained by Professor Wright in his
section on Rule 60(b)(6):
The broad power granted by clause (6) is not for the
purpose of relieving a party from free, calculated, and
deliberate choices he has made. A party remains under
a duty to take legal steps to protect his own
interests. In particular, it ordinarily is not
permissible to use this motion to remedy a failure to
take an appeal. However this is not an inflexible rule
and in unusual cases a party who has not taken an
appeal may obtain relief on motion.
In re Air Crash at Dallas/Fort Worth Airport, 852 F.2d 842,
844 (5th Cir.1988).
2
See also, Fed.R.Civ.P. 77(b); In re Jones, 970 F.2d 36,
38-39 (5th Cir.1992) (Setting forth the 1991 Amendments to
Fed.R.Civ.P. 77(d) and Fed.R.App.P. 4(a), which now permit a
district court to enlarge the time to file an appeal where 1) a
party fails to receive notice from the district court clerk
within 21 days of entry of a judgment or order; 2) no party is
4
Appellant's petition, however, goes beyond a simple request
for an extension of time to file an appeal. In this case,
Appellant is not the victim of counsel who failed to file an
appeal, rather Appellant is the victim of counsel who improperly
filed an appeal, and then allowed the time to perfect the appeal to
lapse. As a result of counsel's neglect, this Court dismissed
Appellant's appeal for failure to prosecute, and subsequently
denied his motion for enlargement of time to file the brief.
In effect, Lancaster asks the district court to use Rule
60(b)(6) to overturn this Court's dismissal of his appeal. Quite
obviously, the district court lacks jurisdiction to overturn an
order of this Court.3 Rule 60(b)(6) was not intended as a remedy
for all wrongs, and certainly does not confer super-appellate
jurisdiction on the district court.4
IV. CONCLUSION
After a thorough review of the law and the record, we conclude
that the district court lacked jurisdiction to grant Appellant's
Federal Rule of Civil Procedure 60(b)(6) motion. Judge Davidson
prejudiced; and 3) a motion is filed within 180 days of entry or
7 days of receipt of notice, whichever is earlier).
3
See e.g. Griggs v. Provident Consumer Discount Co., 459
U.S. 56, 58, 103 S. Ct. 400, 402, 74 L. Ed. 2d 225 (1982) (per
curiam) ("The filing of a notice of appeal is an event of
jurisdictional significance—it confers jurisdiction on the court
of appeals and divests the district court of its control over
those aspects of the case involved in the appeal").
4
See Crutcher v. Aetna Life Ins. Co., 746 F.2d 1076, 1083
(5th Cir.1984) ("Rule 60(b) was not designed to operate as an
insurance mechanism for clients. Its purpose is not to give
relief to the client who does not choose the best lawyer for the
job").
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properly exercised discretion in denying the motion. The order of
the district court is AFFIRMED.
6