Fletcher Thomas Mann, Petitioner-appellant, v. James A. Lynaugh, Director, Texas Department of Corrections,respondent- Appellee, 840 F.2d 1194 (5th Cir. 1988)

Fletcher Thomas Mann appeals from the district court's denial of his habeas corpus petition. As we find that Mann failed to file timely notice of appeal from the judgment, we are compelled to dismiss the appeal.

Fletcher Thomas Mann ("Mann") is a state prisoner currently incarcerated by the Texas Department of Corrections. Mann was convicted of the capital murder of Christopher Lee Bates and was sentenced to death. The facts surrounding the commission of the crime are recited in detail in Mann v. State, 718 S.W.2d 741, 743 (Tex.Crim.App.1986), and will not receive further treatment in this opinion. Mann exhausted his appellate and post-conviction remedies in the state courts and then sought federal habeas relief under Title 28, United States Code, section 2254. On October 20, 1987, the district court issued its memorandum opinion and order denying habeas relief. The opinion and the order were entered on the docket the same day. See Fed. R. Civ. P. 58, 79(a). The district court also ordered that its previously entered stay of execution remain in effect pending the filing of notice of appeal and, if one was timely filed, the resolution of Mann's case by this court. Mann filed notice of appeal from the district court's order on November 20, 1987.

On November 23, the State filed an "Opposition to Petitioner's Request for Certificate of Probable Cause to Appeal" ("Opposition").¹  Since Mann never filed a request for a certificate of probable cause to appeal, the district court considered the Opposition as a motion for reconsideration of the previously entered stay of execution. The district court denied this motion for reconsideration on November 30. On December 9, the district court issued a "Certificate as to Probable Cause" to appeal. On December 30, the State filed with this court its "Motion to Dismiss for Want of Jurisdiction" in which it challenges the timeliness of Mann's notice of appeal.

Federal Rule of Appellate Procedure 4(a) (1) provides, in pertinent part:

In a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from....

In the instant case, the district court's order was entered on October 20, 1987. Mann's notice of appeal would have been timely if filed on or before November 19, 1987. See Fed. R. App. P. 26(a); Fed. R. Civ. P. 6(a). Mann's notice of appeal was not filed until November 20, 1987. It is possible, however, to secure an extension of time for filing notice of appeal under Federal Rule of Appellate Procedure 4(a) (5) which provides, in pertinent part:

The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a).... No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later.

In the instant case, the Rule 4(a) (5) period ended on December 19, 1987, a Saturday. Thus, the time for requesting an extension of time to file notice of appeal expired on the following Monday, December 21, 1987. Mann did not file a motion to extend the time for filing notice of appeal within the Rule 4(a) (5) period. Given these circumstances, the State argues, Mann's notice of appeal failed to confer jurisdiction on this court and, consequently, we must dismiss Mann's appeal.

By contrast, Mann contends that dismissal would be inappropriate. He argues initially that Rule 4, as a "court-created rule," is not inherently jurisdictional and, therefore, noncompliance with its requirements need not bar appellate review. Mann asserts that where the ends of justice require a relaxation of the rule, we should exercise our "discretion" to accept jurisdiction. Next, Mann contends that since his notice of appeal was filed after the expiration of the Rule 4(a) (1) thirty-day period, but before the passage of the Rule 4(a) (5) thirty-day period, and the district court granted a certificate of probable cause, we should construe the district court's action as a finding of good cause or excusable neglect. Finally, Mann argues that the "unique circumstances" of this case warrant treatment of the untimely filed notice of appeal as though it had been timely filed. Specifically, Mann points to his "reliance" on the district court's issuance of a certificate of probable cause and the State's representation in its Opposition that notice of appeal had been filed. Mann's contentions are without merit.

"We have often spoken of the notice requirement as 'jurisdictional' despite the clear language in Federal Rule of Appellate Procedure 1(b) that the rules 'shall not be construed to extend or limit the jurisdiction of the court of appeals as established by law.' " Sanchez v. Bd. of Regents of Texas Southern Univ., 625 F.2d 521, 522 n. 1 (5th Cir. 1980) (quoting Fed. R. App. P. 1(b)). The Rule 4(a) notice requirement, therefore, is not jurisdictional in the sense of subject matter jurisdiction. Sanchez, 625 F.2d at 522 n.1 (citing 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice p 204.02 at 4-13 and 4-14 (2d ed. 1987)). Rather, it is a mandatory precondition to the exercise of jurisdiction. Sanchez, 625 F.2d at 522 n.1. Mandatory preconditions to the exercise of jurisdiction are often spoken of as jurisdictional, however, in the sense that absent compliance, the court cannot acquire jurisdiction of the cause, though otherwise it is a case within the court's subject matter jurisdiction or, as it is sometimes called, "competence." 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice p 204.02 at 4-14 (2d ed. 1987). In this sense, at the very least, compliance with the thirty-day time limit of Rule 4(a) and Title 28, United States Code, Section 2107²  is "mandatory and jurisdictional." See Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 264, 98 S. Ct. 556, 561, 54 L. Ed. 2d 521 (1977); Pryor v. United States Postal Serv., 769 F.2d 281, 284 (5th Cir. 1985). In any event, we must obey the mandatory provisions of the rules whether they are referred to as mandatory, jurisdictional, or mandatory and jurisdictional. See Ryals v. Estelle, 661 F.2d 904, 905 (5th Cir. 1981) (timely filing of the notice of appeal "is a necessary prerequisite for appellate review"); Briggs v. Lucas, 678 F.2d 612, 613 (5th Nov. Cir. 1982) (where notice of appeal was untimely, we lack appellate jurisdiction).

Next, Mann points to the fact that his notice of appeal was filed well within the limitation period prescribed by Rule 4(a) (5), and that during this period, the district court issued a certificate of probable cause. He argues that we should either construe the granting of the certificate of probable cause as a finding of good cause or excusable neglect, or remand the case to the district court for a determination of whether it treated the certificate of probable cause as a finding of good cause or excusable neglect. Mann's first assertion is foreclosed by our decision in Ryals, a case whose procedural posture was quite similar to that of the instant case. In Ryals, notice of appeal was filed after the thirty-day period prescribed by Rule 4(a) (1) but within the following thirty days. The district court granted a certificate of probable cause to appeal apparently after the second thirty-day period expired. In Ryals, we relied on our decision in Barksdale v. Blackburn, 647 F.2d 630, 631-32 (5th Cir. June 1981), vacated on other grounds, 454 U.S. 1118, 102 S. Ct. 962, 71 L. Ed. 2d 106 (1981), for the proposition that:

"We cannot construe the district court's grant of a certificate of probable cause to appeal ... as an implicit finding of excusable neglect in the tardy filing of the notice of appeal, for neither the question of timeliness of filing nor that of an excuse for failure to file timely was presented to the district court...."

Ryals, 661 F.2d 904, 905 (quoting Barksdale, 647 F.2d at 631-32).³ 

Mann argues, however, that Ryals contains language modifying Barksdale which "affords a meaningful solution to the issue presented in this case." Specifically, he points to a passage in Ryals where we stated that " [h]ad the certificate of probable cause been granted within the 30-day limitation, and had the district court treated it as a motion for a finding of excusable neglect and granted the same, we would not have refused to find jurisdiction." Ryals, 661 F.2d at 906. Mann concedes that Ryals and Barksdale constrain us from accepting the certificate of probable cause as a tacit finding of good cause or excusable neglect since the certificate of probable cause was silent on the matter. He argues, however, that since the certificate of probable cause did not address the matter, and since the district court "presumptively knew at the time he granted the certificate that Mann's notice of appeal was not timely filed," it would be reasonable for us to conclude that the district court considered the untimely notice and granted the certificate only after determining that the tardy filing was justified. Mann argues, on the basis of Ryals dicta, that we should remand the case to the district court for a determination of whether it treated the certificate of probable cause as a finding of good cause or excusable neglect.

The State is correct in its assertion that the district court's silence, far from working in Mann's favor, is fatal to his attempted use of the Ryals dicta. In Henry v. Estelle, 688 F.2d 407 (5th Cir. 1982), we were confronted by a set of facts identical to those presented here: notice of appeal was filed after the expiration of the Rule 4(a) (1) thirty-day period; there was no request for an extension of time for filing notice of appeal; and the district court granted a certificate of probable cause before the Rule 4(a) (5) period expired, using a printed form and making no mention of good cause or excusable neglect for the late filing. In dismissing the "attempted appeal" for want of jurisdiction, we noted:

The lower court's August 26, 1981 grant of the certificate of probable cause is of no import. Neither the request for certificate of probable cause nor the order granting it in any way alludes to the fact that the notice of appeal was untimely or to any reason it was filed subsequent to its due date. The request for certificate of probable cause does not request any extension of time for filing notice of appeal, and indeed does not mention anything at all about notice of appeal. The printed form order granting the certificate of probable cause does not purport to extend the time for notice of appeal or to find that there was excusable neglect or good cause for the failure to sooner file the notice of appeal.

Henry, 688 F.2d at 407.⁴  Mann's attempt to find succor in the Ryals dicta, therefore, is unavailing.⁵ 

Finally, Mann contends that this case presents "unique circumstances" calling for the exercise of our "discretion" to entertain the appeal. Specifically, Mann asks us to find that his reliance on the granting of the certificate of probable cause coupled with the State's recitation in its Opposition that notice of appeal had been filed and the State's failure to raise the question of the untimely filed notice of appeal until after the Rule 4(a) (5) grace period expired is sufficient to preclude dismissal. Even if we were free to relax the Rule 4(a) requirements, a dubious proposition given the mandatory nature of the timeliness inquiry, we are unable to conclude that this case warrants such treatment.

Mann points to Thompson v. Immigration & Naturalization Serv., 375 U.S. 384, 84 S. Ct. 397, 11 L. Ed. 2d 404 (1964), and Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S. Ct. 283, 9 L. Ed. 2d 261 (1962), in support of his suggestion that we need be less than punctilious in our observance of the formalities of Rule 4(a) in the instant case. In Harris, the petitioner, a presently defunct interstate motor carrier, engaged local counsel in a suit controlled by petitioner's general counsel, who had been delegated sole responsibility for all corporate decisions with respect to pending litigation by virtue of the fact that the petitioner was winding up its business. The petitioner's suit was ultimately dismissed by the district court and a subsequent motion for new trial was denied. On the date the new trial motion was denied, the general counsel was vacationing in Mexico and could not be reached. Due to his inability to contact the general counsel in order to ask whether to appeal, the local counsel instead asked the district court for an extension of time within which to appeal beyond the thirty-day limit prescribed by Federal Rule of Civil Procedure 73(a). With opposing counsel present, the district court granted the motion. The court of appeals held that a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment had not been made out to the motion judge. Therefore, since there was no basis for the extension of time, the court of appeals dismissed the appeal. The Supreme Court vacated that decision and held:

In view of the obvious great hardship to a party who relies upon the trial judge's finding of "excusable neglect" prior to the expiration of the 30-day period and then suffers reversal of the finding, it should be given great deference by the reviewing court. Whatever the proper result as an initial matter on the facts here, the record contains a showing of unique circumstances sufficient that the Court of Appeals ought not to have disturbed the motion judge's ruling.

Harris, 371 U.S. at 217, 83 S. Ct. at 285.

In Thompson, the district court denied the petitioner's petition for naturalization. Twelve days later, the petitioner served notice that he would file motions to amend the trial court's findings and for a new trial. The Government raised no objections as to the timeliness of these motions, and the trial court specifically declared that the "motion for a new trial" was made "in ample time." The district court denied the motions and the petitioner filed notice of appeal within sixty days of the denial of the motions but not within sixty days of the original entry of judgment. The court of appeals ultimately dismissed the appeal on the ground that notice of appeal had not been filed within the sixty-day period prescribed by Rule 73(a) since the petitioner's motions were untimely, and thus could not toll the running of the time for appeal.

The Supreme Court found that Thompson's case fit squarely within the letter and spirit of Harris:

Here, as there, petitioner did an act which, if properly done, postponed the deadline for the filing of his appeal. Here, as there, the District Court concluded that the act had been properly done. Here, as there, the petitioner relied on the statement of the District Court and filed the appeal within the assumedly new deadline but beyond the old deadline. And here, as there, the Court of Appeals concluded that the District Court had erred and dismissed the appeal. Accordingly, in view of these "unique circumstances," we grant the writ of certiorari, vacate the judgment, and remand the case to the Court of Appeals so that petitioner's appeal may be heard on the merits.

Thompson, 375 U.S. at 387, 84 S. Ct. at 399 (citation omitted).

The "unique circumstances" justifying reinstatement of the appeal in Harris and Thompson are simply not implicated in the instant case. Unlike the petitioners in Harris and Thompson, Mann did no act which, if properly done, would have postponed the deadline for filing notice of appeal. Mann merely failed to file timely notice of appeal. The district court made no specific finding of good cause or excusable neglect for the late filing and the granting of a certificate of probable cause cannot be construed as such a finding. The district court did not expressly state that the notice of appeal was timely filed, nor, in fact, did it even mention the notice of appeal. Mann, therefore, cannot be said to have relied on the district court's action in order to excuse his failure to move for an extension under Rule 4(a) (5).⁶  We are without jurisdiction to entertain Mann's appeal, and must grant the State's motion to dismiss.

Much as we regret having to dismiss Mann's appeal on jurisdictional grounds, the law in this area permits no other result. See Williams v. Treen, 671 F.2d 892 (5th Cir. 1982), cert. denied, 459 U.S. 1126, 103 S. Ct. 762, 74 L. Ed. 2d 977 (1983). Our aversion to doing so, however, is tempered by the fact that Mann's substantive claims have received extensive and thorough judicial attention. Neither the Texas courts nor the district court below have found any merit in Mann's position. Regardless of our view as to the ultimate merit of Mann's claims, however, we are constrained on jurisdictional grounds from entertaining the appeal.

Accordingly, we DISMISS the appeal.