by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit held that an untimely notice of appeal (“NOA”) that provides a reason for the tardiness may serve as a motion to reopen and as a request for certificate of appealability (“COA”).

After Da’Rell Anton Winters’ appeals of his armed robbery conviction in Michigan state courts were exhausted, he petitioned the U.S. District Court for the Eastern District of Michigan for habeas relief under 28 U.S.C. § 2254. The District Court denied his petition on March 10, 2021, and denied a COA. But due to a transfer to another prison, Winters did not timely receive the District Court’s order and judgment. On June 1, 2021, Winters filed a NOA that read:

“Notice is hereby given that Da’Rell Winters, petitioner in the above-named case, hereby appeals to the United States Court of Appeals for the Sixth Circuit from the final judgment dismissing his habeas corpus petition entered in this action on the 10 day of March, 2021. Petitioner received this judgment via prison legal mail and was signed on or about the 18th of May, 2021.”

The District Court served a copy of the NOA on the Sixth Circuit. The Sixth Circuit dismissed the appeal with instructions that “[a]ny effort to reopen the time for appeal should take place, if at all, in the district court.” On September 1, 2021, Winters moved the District Court to reopen the time to appeal. The District Court retroactively construed the June 1 NOA as a motion to reopen and concluded that the June 1 NOA was timely. Ultimately, the Sixth Circuit appointed attorney Sarah Welch to represent Winters on the question of “whether this appeal is timely and whether we have jurisdiction to hear it.”

The Court observed that in cases not involving the federal government “no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed within thirty days after the entry of such judgment, order or decree.” 28 U.S.C. § 2107(a). Habeas proceedings are “of a civil nature” and subject to the time limits on filing an NOA for civil cases. See Bowles v. Russell, 551 U.S. 205 (2007) (treating time limits in the Appellate Rules as jurisdictional when they turn on a congressional time limit).

However, this 30-day time limit is subject to exceptions, including—Extension: “The district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing an appeal, extend the time for appeal upon a showing of excusable neglect or good cause.” 28 U.S.C. § 2107(c); see also Rule 4 of the Federal Rules of Appellate Procedure (“FRAP”). Reopening: “[I]f the district court finds—(1) that a party entitled to notice of the entry of judgment or order did not receive such notice … within 21 days of its entry, and (2) that no party would be prejudiced, the district court may, upon motion … reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.” § 2107(c). These timetables limit the subject matter jurisdiction of the federal appellate courts. Bowles.

The Court explained that a pro se prisoner may “comply with these deadlines even if he captions a request with the wrong label or fails to satisfy a nonsignificant requirement of a notice of appeal.” See Young v. Kenney, 949 F.3d 995 (6th Cir. 2020) (per curiam) (construing a filing styled as a “notice of appeal” as a Rule 4(a)(5) motion for an extension); Reho v. United States, 53 F.4th 397 (6th Cir. 2022) (order) (treating a motion for an extension of time to file a request for a certificate of appealability as a moton for an extension of time to file an appeal); Smith v. Barry, 502 U.S. 244 (1992) (explaining that the rules “do not preclude an appellate court from treating a filing styled as a brief as a notice of appeal”).

A “single pleading may serve more than one function”—for example, “a brief may serve as a notice of appeal and that a notice of appeal may serve as a motion for an extension of time,” according to the Court. See Barry. The Court acknowledged that the Courts of Appeals are not all in agreement on this issue, noting that the Ninth and Eleventh Circuits have ruled that an NOA may also serve as a motion to reopen but that the Third and Fourth Circuits have ruled to the contrary. See Parrish v. United States, 74 F.4th 160 (4th Cir. 2023) (one document cannot serve as both a notice of appeal and a motion to reopen); United States v. Withers, 638 F.3d 1055 (9th Cir. 2011) (one document can serve as both a notice of appeal and a motion to reopen); Poole v. Fam. Ct. of Newcastle Cnty., 368 F.3d 263 (3d Cir. 2004) (notice of appeal cannot be construed as a motion to reopen); Sanders v. United States, 113 F.3d 184 (11th Cir. 1997) (per curiam) (construing notice of appeal as motion to reopen).

In Martin v. Sullivan,876 F.3d 235 (6th Cir. 2017), a pro se prisoner filed a late NOA that read: “Notice is hereby given that [Petitioner] appeals to the United States Court of Appeal [sic] for the Sixth Circuit from the Judgment entered in this action on 5/31/17.” The Martin Court held that the barebones NOA could not be construed as a motion to reopen.

But in Young, a pro se prisoner filed an NOA that was eight days late. While the NOA did not seek an extension of time, the prisoner thoroughly explained the reason for the tardiness (he was transferred to a psychiatric unit where he was not permitted personal property, so he did not receive the District Court’s order until he was released from that unit). The Sixth Circuit held that the prisoner’s NOA “effectively read” as a “Rule 4(a)(5) motion for extension of time” and could “be treated as such.”

Turning to the present case, the Court concluded that Winters’ NOA was more akin to the one in Young than Martin. While Winters’ NOA was not as thorough an explanation as the one in Young, it was not a “barebones” NOA in that it contained a brief explanation for the delay, i.e., Winters had not received the District Court’s order until May 18, 2021.

Furthermore, the Court stated that Winters’ NOA “functionally satisfied the requirements for a motion to reopen. A motion to reopen must: (1) be filed no later than 14 days after receiving notice of the District Court’s decision; (2) the District Court must find “that the moving party did not receive notice … of the entry of judgment … within 21 days after entry,” and (3) the District Court must find “that no party would be prejudiced.” FRAP 4(a)(6).

Winters’ NOA was filed June 1, which was 14 days from the date he received notice of the District Court’s decision; Winters did not receive notice of the District Court’s decision within 21 days of its entry; and it was not within Winters’ “ken” to “know how the opposing party might or might not be prejudiced by reopening the appeal period,” the Court reasoned. (In the present case, Respondent wouldn’t be prejudiced.) Thus, the Court held that Winters’ appeal was timely.

Accordingly, the Court directed the Clerk’s Office to set a briefing schedule over whether to grant a COA. See: Winters v. Taskila, 88 F.4th 665 (6th Cir. 2023).  

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