United States v. Charlie Lawuary ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3126
C HARLIE L AWUARY,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 97-30058—Richard Mills, Judge.
S UBMITTED D ECEMBER 23, 2011—D ECIDED F EBRUARY 8, 2012
Before E ASTERBROOK, Chief Judge, and F LAUM and
M ANION, Circuit Judges.
E ASTERBROOK, Chief Judge. Charlie Lawuary pleaded
guilty to distributing cocaine and was sentenced to life
in prison. We affirmed. United States v. Lawuary, 211 F.3d
372 (7th Cir. 2000). He filed and lost a collateral attack
under 28 U.S.C. §2255. Lawuary v. United States, 199
F. Supp. 2d 866 (C.D. Ill. 2002). Almost a decade later,
he filed in the district court what he styled a motion
2 No. 11-3126
under Fed. R. Civ. P. 60(d)(1), asking the court to
reopen the case. The judge treated this as a successive
collateral attack, see Gonzalez v. Crosby, 545 U.S. 524
(2005), and dismissed the motion for lack of jurisdiction,
informing Lawuary that he needs this court’s permis-
sion to start a new round of collateral litigation. See
28 U.S.C. §§ 2244(b), 2255(h).
The district court’s decision was entered on the docket
on March 14, 2011. Lawuary filed a notice of appeal
186 days later. That is well after the time allowed by
28 U.S.C. §2107 and Fed. R. App. P. 4(a)(1)(A), unless
the appeal is saved by Rule 4(a)(7). The time under
Rule 4(a)(1)(A) runs from the “entry” of the order
appealed from. Rule 4(a)(7)(A) says that this means the
date when the order is entered on the docket, unless (per
Rule 4(a)(7)(A)(ii)) a separate document was required
by Fed. R. Civ. P. 58(a), and the district court failed to
enter one when it should have done. Then the date of
“entry” is postponed until the district court complies
with Rule 58, or 150 days have passed, whichever
happens first. The district judge did not enter a Rule 58
judgment. If one was required, then the time for appeal
started 150 days after March 14, 2011, and Lawuary’s
appeal is timely, because, when the United States is a
party to a civil proceeding, the losing litigant has 60 days
to appeal. (A collateral attack on a criminal judgment
is treated as a “civil” matter for this purpose. See Browder
v. Director, Department of Corrections, 434 U.S. 257 (1978).)
So is a Rule 58 judgment required when a district
court denies a Rule 60 motion on the ground that it is
No. 11-3126 3
effectively a new collateral attack? Rule 58(a) provides
that “every judgment” must be set out in a separate
document but enumerates five kinds of decision that do
not count as a “judgment” for this purpose. One of these
is an “order disposing of a motion . . . for relief under
Rule 60.” Rule 58(a)(5). The problem is that, while
Lawuary put a Rule 60 caption on his motion, the
district court held that it must be treated as something
else. How does this affect the district court’s obligations
under Rule 58(a)?
None of the courts of appeals appears to have addressed
this question. The answer is not obvious. But we think
it best to apply Rule 58(a) to what the litigant’s paper
calls itself. Jurisdictional rules are supposed to be as
mechanical as possible. See Budinich v. Becton Dickinson &
Co., 486 U.S. 196, 202 (1988). Often the clerk of court, not a
judge, decides whether a Rule 58 judgment is required.
See Rule 58(b)(1). The clerk should be able to rely on
the litigants’ characterizations of their own filings,
without having to look beneath the surface. And a
litigant who calls his motion one under Rule 60 cannot
claim to be surprised or confused if the judiciary applies
the procedures, including those affecting appellate juris-
diction, for Rule 60 motions. It is inconceivable that a
pro se litigant would intentionally defer filing a notice
of appeal because of a belief that the district court
failed to enter a required Rule 58 judgment and that
Rule 4(a)(7)(ii) therefore afforded an extra 150 days; not
even a lawyer would reason that way, given Bankers
Trust Co. v. Mallis, 435 U.S. 381 (1978), which permits
an immediate appeal from a dispositive order despite
4 No. 11-3126
the court’s failure to enter a proper Rule 58 judgment. It
is unnecessary to give Rule 58(a)(5) a strained reading
in order to save non-lawyers from a risk of misunder-
standing the time for appeal.
Gonzalez held that a Rule 60 motion that presents a
claim for release from prison should be treated the
same way as a new petition for collateral relief, no
matter what its caption. The Court did not say that
the document is something other than a motion under
Rule 60. Indeed, Gonzalez repeatedly referred to the
motion in that case as “the Rule 60 motion”. What the
Court concluded, rather, is that a motion under Rule 60
that makes a claim for release from prison may be
granted only if the prisoner satisfies the requirements
of §2244(b) and, if necessary, §2255(h). Treating a self-
styled “Rule 60 motion” as a Rule 60 motion for the
purpose of Rule 58(a)(5) even when the motion demands
release from prison (or a shorter term of imprisonment)
therefore does not conflict with Gonzalez.
In at least one circuit, recharacterizing the Rule 60
motion as a stand-alone petition under §2255 would not
assist Lawuary. Williams v. United States, 984 F.3d 28
(2d Cir. 1993), holds that district judges need not enter
Rule 58 judgments in any §2255 proceeding. The second
circuit observed that §2255(a) calls the proceeding a
“motion” in the original criminal case, which is why it
returns to the judge who imposed sentence. Although
§2255 proceedings are treated as civil matters for some
purposes, such as the time for appeal, Williams con-
cluded that they are so closely related to the criminal
No. 11-3126 5
prosecution that a separate civil judgment under Rule 58
is unnecessary. If that is so, the denial of a Rule 60
motion in a §2255 proceeding cannot require a Rule 58
judgment. One circuit has disagreed with Williams, see
United States v. Johnson, 254 F.3d 279, 284 (D.C. Cir. 2001),
and this circuit has not examined the question—though
Hope v. United States, 43 F.3d 1140, 1142 (7th Cir. 1994),
assumed that Rule 58 governs and held it satisfied by
the district court’s form of decision. We need not tackle
the question today. It is enough to hold that the disposi-
tion of a motion filed in a §2255 proceeding, and long
after final judgment, does not require a separate Rule 58
judgment.
There is one final complication in Lawuary’s appeal.
Seventeen days after the district court denied his Rule 60
motion, Lawuary filed a motion nominally under Fed. R.
Civ. P. 59(e). The district court treated this motion not
as a request to reconsider the dismissal of the Rule 60
motion, but as an independent motion for relief under
an amendment to the Sentencing Guidelines reducing
the ranges for some crack-cocaine sentences. See Amend-
ment 759, making Amendment 750 retroactive as of
November 1, 2011; see also 18 U.S.C. §3582(c)(2). The
district court treated Lawuary’s request as premature
and held it open, rather than denying it summarily.
It remains pending in the district court. This motion
does not affect the finality of the order denying the
Rule 60 motion; a motion for a sentence reduction
under §3582(c)(2) does not concern the validity or finality
of the sentence being served. See Dillon v. United States,
6 No. 11-3126
130 S. Ct. 2683, 2690–92 (2010) (discussing the nature of
proceedings under §3582(c)(2)).
Lawuary’s appeal therefore came too late to contest
the denial of his Rule 60 motion, and is too early to
present any issue about his request for a sentence reduc-
tion under Amendment 759. The appeal is dismissed
for want of jurisdiction.
2-8-12