United States v. Edward Jackson

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-2647
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UNITED STATES OF AMERICA
v.
EDWARD JACKSON, aka QUILL,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-11-cr-00434-060)
District Judge: Hon. Berle M. Schiller
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Argued Tuesday, January 14, 2020
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Before: HARDIMAN, PORTER, and PHIPPS,
Circuit Judges
(Filed: February 4, 2020)
Rachel A.H. Horton [Argued]
Ilana H. Eisenstein
DLA Piper
1650 Market Street
One Liberty Place, Suite 5000
Philadelphia, PA 19103
Bruce P. Merenstein
Schnader Harrison Segal & Lewis LLP
1600 Market Street, Suite 3600
Philadelphia, PA 19103
Counsel for Appellant
William M. McSwain, United States Attorney
Robert A. Zauzmer, Chief of Appeals
Emily McKillip [Argued]
Bernadette A. McKeon
Michelle Rotella
Nancy B. Winter
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
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OPINION ∗
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PORTER, Circuit Judge.
Edward Jackson pleaded guilty to one count of conspiracy to distribute
oxycodone. Jackson later petitioned the District Court to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. A Magistrate Judge issued a Report and
Recommendation, recommending that the District Court deny Jackson’s motion. After
the deadline for Jackson to submit his objections to the Report and Recommendation, the
District Court entered a final order adopting the Report and Recommendation and
denying Jackson’s motion. More than sixty days later, Jackson appealed.
∗
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
As a threshold matter, we must decide whether Jackson’s notice of appeal was
timely. It was not. And because filing a timely notice of appeal is a jurisdictional
question, we will dismiss Jackson’s appeal for want of jurisdiction.
I
Jackson participated in a drug conspiracy. He pleaded guilty and was sentenced to
240 months’ imprisonment. He directly appealed, but we affirmed his conviction. United
States v. Jackson, 579 F. App’x 134, 136 (3d Cir. 2014). In 2015, Jackson filed a motion
to vacate, set aside, or correct his sentence under § 2255. On April 17, 2017, the
Magistrate Judge issued a Report and Recommendation, recommending that the District
Court deny Jackson’s § 2255 motion. An accompanying notice alerted the parties that
they could file objections to the Report and Recommendation within fourteen days.
From prison on May 1, 2017, Jackson timely submitted his pro se objections to be
transmitted to the District Court, but they were not docketed until May 8, 2017. On May
3, 2017, the District Court entered an order (the “First Order”) adopting the Report and
Recommendation, denying the § 2255 motion, and declining to grant a certificate of
appealability. On July 14, 2017, Jackson mailed his request for a certificate of
appealability, which we construed as a notice of appeal. 1 On October 20, 2017, the
District Court responded to Jackson’s objections to the Report and Recommendation by
1
Jackson contends that he filed an earlier notice of appeal, but he concedes that there is
no evidence that we ever received or docketed it. See Appellant’s Br. at 13. And while he
claims that a search of the prison mail log would support his contention, see id., he does
not explain why an evidentiary hearing is necessary for him to conduct this search.
3
entering a second order (the “Second Order”) that again adopted the Report and
Recommendation and denied Jackson’s § 2255 motion.
II 2
We must first decide whether we have jurisdiction to consider Jackson’s appeal.
Because a § 2255 motion is considered a civil remedy, see United States v. Fiorelli, 337
F.3d 282, 286 (3d Cir. 2003), whether Jackson’s appeal was timely filed is a
jurisdictional question, see Bowles v. Russell, 551 U.S. 205, 209–11 (2007). A notice of
appeal in a civil action in which the United States is a party is timely when it is filed
within 60 days of the entry of an appealable order or a final judgment. Fed. R. App. P.
4(a)(1)(B).
In the First Order, the District Court adopted the Report and Recommendation and
denied Jackson’s § 2255 motion. The First Order was final because it “end[ed] the
litigation on the merits and [left] nothing for the court to do but execute the judgment.”
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996) (quoting Catlin v. United
States, 324 U.S. 229, 233 (1945)); cf. Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 266
(1978) (“Respondent’s failure to assert the need for an evidentiary hearing . . . did not . . .
render the [d]istrict [c]ourt order nonfinal.” (emphasis added)). And Jackson conceded as
much. See Appellant’s Br. at 24 (“Here, the District Court’s first order denied habeas
relief on May 3, 2017, and, therefore, that order had the finality required under FirsTier
2
The District Court had jurisdiction under 28 U.S.C. §§ 1331, 2255. “We have
jurisdiction to review our own jurisdiction when it is in doubt[.]” LeBoon v. Lancaster
Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 222 (3d Cir. 2007) (citing Constitution Bank v.
Tubbs, 68 F.3d 685, 691 (3d Cir. 1995)).
4
Mortgage.” (emphasis added)). The record shows that Jackson delivered his request for a
certificate of appealability—which we construed as his notice of appeal—to prison
authorities for mailing more than sixty days later, on July 14, 2017. Because Jackson
missed the sixty-day deadline to appeal, we lack jurisdiction over his appeal.
Jacksons raises two alternative theories under which we might exercise
jurisdiction. First, he contends that his objections to the Report and Recommendation
should be construed as a motion to amend the District Court’s judgment under Federal
Rule of Civil Procedure 59(e). Second, he asserts that Jackson’s notice of appeal
“ripened” when the District Court entered the Second Order. We are unpersuaded and
still conclude that we lack jurisdiction.
A
Jackson first tries to save his untimely appeal by inviting us to construe his
objections to the Report and Recommendation as a motion to amend the judgment under
Rule 59(e). If we interpret Jackson’s objections as a Rule 59(e) motion, then the deadline
to file his appeal would have been tolled until the District Court resolved the motion. See
Fed. R. App. P. 4(a)(4)(A)(iv), (B)(i). According to Jackson, construing his objections as
a Rule 59(e) motion would render his notice of appeal timely because the deadline for his
notice would have been tolled until the District Court entered the Second Order in
October 2017.
We decline Jackson’s invitation to construe his objections to the Report and
Recommendation as a Rule 59(e) motion. At the outset, we observe that objections to a
report and recommendation and a Rule 59(e) motion are fundamentally different.
5
Objections respond to a magistrate judge’s recommendation to a district court on how to
resolve a dispositive motion. See Fed. R. Civ. P. 72(b)(2) (governing objections filed to
recommendations made by magistrate judges on dispositive motions); cf. Equal Emp’t
Opportunity Comm’n v. City of Long Branch, 866 F.3d 93, 99–100 (3d Cir. 2017).
Relevant here, a magistrate judge reviewing “applications for posttrial relief made by
individuals convicted of criminal offenses” is authorized by statute to provide only
recommendations to a district court. 28 U.S.C. § 636(b)(1)(B) (“a [district] judge may
also designate a magistrate judge . . . to submit . . . proposed findings of fact and
recommendations for the disposition, by a judge of the court[ ]”). The plain meaning of
§ 636(b)(1)(B) permits a magistrate judge to make a recommendation on an application
for post-conviction relief—not rule on an application outright.
By contrast, Rule 59(e) motions respond to judgments entered by district courts.
Cf. In re Vehicle Carrier Servs. Antitrust Litig., 846 F.3d 71, 87 (3d Cir. 2017) as
amended (Jan. 25, 2017). This is confirmed by the plain text of Rule 59(e), which
explicitly contemplates “alter[ing] or amend[ing] a judgment.” Fed. R. Civ. P. 59(e)
(emphasis added). We have also said that “[a] motion under Rule 59(e) is a device to
relitigate the original issue decided by the district court, and used to allege legal error.”
Fiorelli, 337 F.3d at 288 (emphasis added) (internal quotation marks and citation
omitted).
In short, objections and Rule 59(e) motions differ because they respond to
different statements by courts: objections respond to magistrate judges’ recommendations
6
to district courts, while Rule 59(e) motions respond to final decisions by district courts.
Compare City of Long Branch, 866 F.3d at 99–100, with Fiorelli, 337 F.3d at 288.
Here, Jackson filed objections to the Report and Recommendation. He titled his
filing as “Petitioner’s Objections to the Report and Recommendation,” JA234, and, in
that filing, he “respectfully object[ed] to the [Report and Recommendation] filed by [the]
Magistrate Judge . . . and urge[d] the District Court to independently review the grounds
raised by [him].” JA239 (emphasis added). In form and substance, Jackson’s filing raised
objections to the Report and Recommendation but did not purport to challenge any
judgment of the District Court. Because we construe a pro se motion based on its
“function . . . and not the caption,” see Fiorelli, 337 F.3d at 288, we must read Jackson’s
objections as just that: objections to the Report and Recommendation.
And perhaps more importantly, we will not read Jackson’s objections as a Rule
59(e) motion because doing so would imply that the Magistrate Judge could have
resolved an application for post-conviction relief. If Jackson’s objections were considered
a Rule 59(e) motion, then we would be treating the Magistrate Judge’s Report and
Recommendation as a final judgment. But by statute, magistrate judges are not authorized
to enter final judgments on applications for post-conviction relief; they are permitted only
to recommend outcomes to district courts. See § 636(b)(1)(B). We decline to defy the
plain meaning of a validly enacted statute by construing Jackson’s objections as a Rule
59(e) motion.
Lastly, as a matter of temporal logic, a Rule 59(e) motion may not be submitted
before a district court has announced its decision. In other words, Jackson could not have
7
filed a Rule 59(e) motion until after the District Court announced the First Order. But
here, Jackson submitted his objections to the Report and Recommendation before the
District Court announced or entered the First Order. We will not construe his objections
to the Report and Recommendation as a motion to amend a then-yet-to-be-announced
order. Cf. United States v. Hashagen, 816 F.2d 899, 904 (3d Cir. 1987) (“[I]t hardly
would do to permit a party to file a general notice of appeal at the start of the action as a
precaution . . . .”).
In sum, we will not indulge Jackson’s request to construe his objections to the
Report and Recommendation as a Rule 59(e) motion to amend a then-unannounced
order. 3
B
Next, Jackson argues that his request for a certificate of appealability—which we
construed as a notice of appeal—“ripened” after the District Court entered the Second
Order. Under this theory, Jackson’s notice of appeal was premature because the Second
Order was issued after he filed it. To support his argument, Jackson relies on two cases—
FirsTier Mortgage Co. v. Investors Mortgage Insurance Co., 498 U.S. 269 (1991), and
Lazy Oil Co. v. Witco Corp., 166 F.3d 581 (3d Cir. 1999).
3
Jackson insists that Fiorelli requires us to construe his objections as a Rule 59(e)
motion. Jackson is wrong. There, we construed a Rule 60(b) motion as a Rule 59(e)
motion. See Fiorelli, 337 F.3d at 287–88. In doing so, we observed that “motions for
reconsideration under Federal Rules of Civil Procedure 59(e) and 60(b) serve similar
functions[.]” Id. at 288. Here, as we explained above, Rule 59(e) motions and objections
to magistrate judges’ recommendations do not serve similar functions. Thus, Fiorelli
does not control.
8
We are unpersuaded that either FirsTier or Lazy Oil supports Jackson’s argument.
In FirsTier, the appellant filed a notice of appeal after the district court issued a bench
ruling but before it entered judgment. 498 U.S. at 272. Because the bench ruling
constitued a “final decision” for purposes of the Federal Rules of Appellate Procedure,
the appellant acted reasonably by filing its notice of appeal after the bench ruling but
before the judgment was entered. Id. at 277. Here, the First Order was a final appealable
order. See Quackenbush, 517 U.S. at 712. Jackson filed his appeal from that final order
beyond the deadlines in Rule 4(a)(1)(B). In short, Jackson’s appeal was not premature—it
was late. FirsTier is therefore distinguishable from Jackson’s appeal.
Lazy Oil also provides little support to Jackson’s argument. Lazy Oil is one of
several cases that stand for the proposition that under certain circumstances, “a premature
notice of appeal, filed after disposition of some of the claims before a district court, but
before entry of final judgment, will ripen upon the [district] court’s disposal of the
remaining claims.” 166 F.3d at 585 (emphasis added) (citing Cape May Greene, Inc. v.
Warren, 698 F.2d 179, 184–85 (3d Cir. 1983)). But here, the District Court’s First Order
resolved all of Jackson’s claims. In the First Order, the District Court adopted the Report
and Recommendation, denied Jackson’s § 2255 motion in its entirety, and declined to
issue a certificate of appealability. And Jackson conceded that the First Order is a final
one. See Appellant’s Br. at 24. Thus, Lazy Oil is also distinguishable from Jackson’s
case.
Accordingly, we reject Jackson’s argument that his untimely notice of appeal
“ripened” upon the District Court’s entry of the Second Order.
9
* * *
Jackson did not file a timely notice of appeal, so we will dismiss for lack of
jurisdiction.
10