Angel Maturino Resendiz, Petitioner-appellant, v. Doug Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-appellee, 452 F.3d 356 (5th Cir. 2006)

Petitioner-Appellant, Angel Maturino Resendiz, was convicted of capital murder in Texas and sentenced to death. After the Texas Court of Criminal Appeals affirmed his conviction and sentence and denied post-conviction relief, Resendiz filed a petition for writ of federal habeas corpus. The district court denied relief. On appeal, the sole issue is whether the motion to reopen the time for filing a notice of appeal was timely under the Federal Rules of Appellate Procedure. Because we conclude that the motion was untimely, the appeal is dismissed for lack of jurisdiction.

The only history relevant to the issue before us is with respect to Resendiz's federal habeas petition. On May 3, 2005, Resendiz, represented by counsel, filed a petition for federal habeas relief. Relying on, among other cases, Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), he argued that it was unconstitutional for a defendant to have the burden of proving circumstances that mitigate against the death penalty. On May 23, the Respondent filed a motion for summary judgment. On September 7, the district court denied relief and entered final judgment. That same day, a docket entry indicates that the parties were notified.

On November 15, counsel for Resendiz filed a motion to reopen the time to file a notice of appeal or, in the alternative, a request to extend the time to file a notice of appeal.¹  In the motion, counsel admitted that he received notice of the judgment in the mail "shortly after" it was entered. Counsel further stated that on November 10, he visited Resendiz in prison and notified Resendiz for the first time of the judgment. Resendiz indicated that he wished to appeal. Also, counsel asked the court not to impute his failure to file a notice of appeal to Resendiz. On November 16, the Mexican Consul General filed a letter requesting that the case be reopened. On November 21, the Respondent filed a response in opposition to Resendiz's motion to reopen. On November 22, Resendiz filed a reply to the Respondent's opposition. That same day, the district court denied Resendiz's motion.² 

On December 12, this Court issued an order directing counsel for Resendiz to show cause whether the district court correctly denied the motion to reopen the time to file a notice of appeal, and if so, whether the appeal should be dismissed as untimely. Resendiz, through counsel, and the Respondent have responded to the show cause order.

Rule 4 of the Federal Rules of Appellate Procedure governs this case and instructs that "the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered." Rule 4(a) (1). Here, the record establishes, and Resendiz does not dispute, that the notice of appeal was not filed within the 30-day period. This Court has explained that Rule 4 has two avenues "for rescuing [an] appeal through a late-filed notice of appeal." Wilkens v. Johnson, 238 F.3d 328, 330 (5th Cir. 2001). These two avenues are set forth in Rule 4(a) (5)-(6) as follows:³ 

(5) Motion for Extension of Time.

(A) The district court may extend the time to file a notice of appeal if:

(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires [.]

. . . .

(6) Reopening the Time to File an Appeal.

The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:

(A) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice of the entry, whichever is earlier;

(B) the court finds that the moving party was entitled to notice of the entry of the judgment or order sought to be appealed but did not receive the notice from the district court or any party within 21 days after entry; and

(C) the court finds that no party would be prejudiced.

Resendiz admits, as he must, that his lawyer did not file a motion for extension until after the sixty-day period under Rule 4(a) (5) (A) (i) had expired. Thus, the only potential avenue of relief remaining is pursuant to Rule 4(a) (6).⁴  Resendiz agrees, recognizing that the "determinative question" is whether he was "entitled to notice of the entry of the judgment or order sought to be appealed from but did not receive the notice from the district court." (Resendiz Response 6 (quoting Fed. R. App. P. 4(a) (6)).) In other words, in an attempt to fall under the saving provision in Rule 4(a) (6), Resendiz asserts that the notice his counsel received did not constitute sufficient notice because counsel abandoned him, failing to either timely inform him of the judgment or to file a notice of appeal.

As Resendiz recognizes, this Court has stated that the seven-day window in Rule 4(a) (6) for the filing of a motion to reopen after notice of the judgment may be triggered by " [a]ny written notice of entry received by the potential appellant or his counsel (or conceivably by some other person)." Wilkens, 238 F.3d at 332 (footnote omitted). Resendiz argues that this language is dictum because there was no argument in Wilkens that counsel received notice at a different time than the petitioner.

Although Wilkens did not involve the precise issue at bar, it certainly informs this case. In Wilkens, as in the instant case, the petitioner was convicted of capital murder in Texas and awaiting execution. Id. at 329. On June 18, 1999, the district court entered judgment denying Wilkens's federal habeas petition. Although the docket sheet indicated that the clerk had mailed copies of the judgment to the attorney of record that same day, Wilkens's counsel claimed that he never received a copy in the mail. Counsel averred that his first notice of the judgment was September 7, when, at the request of the court's staff attorney, a copy was "faxed" to him. Id. A docket entry provides that Wilkens filed a motion for leave to file a late notice of appeal on October 4. The district court granted the motion to reopen.

In Wilkens, this Court, sua sponte, raised the question of appellate jurisdiction.⁵  Recognizing that a timely notice of appeal "is a mandatory precondition to the exercise of appellate jurisdiction," we explained that we must determine the validity of the district court's order granting Wilkens's leave to file the notice of appeal almost four months after judgment was entered. Id. at 330. As mentioned previously, Rule 4 has two saving provisions for notices of appeal filed beyond the 30-day time limit: Rule 4(a) (5) extends the time for filing; and Rule 4(a) (6) reopens the time in which to file. As in the case at bar, because Wilkens did not file within sixty days of entry of judgment, Rule 4(a) (5) was not available to him, leaving the reopening provision of Rule 4(a) (6) as the only potential avenue for relief. Id. at 331.

As quoted previously, subsection (A) of Rule 4(a) (6) requires that the motion to reopen be filed within 180 days of judgment or within seven days after receiving notice, whichever is earlier. Although Wilkens's motion had been filed prior to the expiration of the 180-day limit, it was not filed within seven days of receiving the facsimile copy on September 7. Therefore, the case hinged on whether the faxed notice qualified as notice of entry of the judgment for the purpose of triggering subsection (A)'s seven-day filing window. Id. at 331-32. Ultimately, after observing that (1) the rule did not describe the words "receive" or "notice" and (2) other circuits had not required formal service as set forth in Rules 5(b) and 77(d) of the Federal Rules of Civil Procedure, this Court concluded that the plain wording of the rule indicated that the faxed copy constituted sufficient notice to trigger the sevenday window for filing. Id. at 333-36.⁶  As a result, the late notice of appeal was a nullity, leaving this Court with no appellate jurisdiction over Wilkens's habeas petition.

Of course, in the instant case, the issue is not a challenge to the method of service but a challenge to the sufficiency of service in light of counsel's failure to communicate the notice or act upon it. In any event, Wilkens makes clear that unless a Rule 4(a) (6) motion is filed timely, "the court is powerless to reopen the time for filing" a notice of appeal. Id. at 331.⁷ 

Resendiz argues that the district court erred in relying on Rules 5(b) and 77(d) of the Rules of Civil Procedure in finding that service on counsel was sufficient notice because Wilkens's "core" holding rejected reliance on those formal rules of service.⁸  (Response 9-10). That case, however, does not support Resendiz. Although Wilkens did recognize that the plain language of then-effective Rule 4(a) (6) did not reference Rules 5(b) or 77(d) or describe the type of notice required, that meant any written notice received by either counsel or the client was sufficient. Wilkens, 238 F.3d at 332.⁹  Wilkens's interpretation of Rule 4(a) (6) offers Resendiz no succor in that it is a more lenient standard for finding sufficient notice.

The above discussion brings us back to the general rule, which Resendiz apparently concedes, that "courts ordinarily deem a party represented by counsel `to have notice of all facts, notice of which can be charged upon the attorney.'" (Resendiz Response 10 (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 397, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993)).) Resendiz acknowledges the general rule and argues that his case warrants an exception. The thrust of his argument is that his counsel had abandoned him and thus, notice to counsel could not be imputed to him.

In an attempt to persuade this Court to recognize an exception to the general rule, Resendiz quotes an excerpt from an opinion of this Court in which we discussed cases that held that the time to file a notice of appeal does not begin to run until a pro se party is notified either of the entry of judgment or his right to appeal. (Resendiz Response 12 (quoting Nelson v. Foti, 707 F.2d 170, 171 (5th Cir. 1983)).) Resendiz, however, neglects to put this discussion in context. Indeed, the language immediately preceding and subsequent to the quoted excerpt explains that prior to the 1979 amendments to Rule 4(a), this Circuit "carved out an exception to this seemingly jurisdictional bar for litigants proceeding pro se." Nelson, 707 F.2d at 171. Subsequent to the 1979 amendments to Rule 4(a), this Court has "adhered strictly to its mandate." Id.¹⁰  Moreover, Resendiz does not cite, and we are not aware of, any subsequent Fifth Circuit precedent allowing an exception to the mandate of Rule 4(a).¹¹ 

Here, the district court found, and we agree, that Resendiz has not shown that counsel abandoned him. In the district court, counsel filed a federal habeas petition on Resendiz's behalf and, after meeting with Resendiz, moved, albeit untimely, to reopen the period for filing a notice of appeal. If counsel's failure to file a timely notice of appeal constitutes abandonment, then Resendiz's argument would allow an end run around the requirements set forth in Rule 4(a) (6). Stated another way, the proposed exception would swallow the rule. In any event, because we conclude Resendiz has not shown he was abandoned by counsel, we do not reach the question of whether notice may be imputed to a party who, though technically represented, is abandoned by counsel. We hold that the district court correctly found that the notice received by counsel was imputed to Resendiz, which renders the Rule 4(a) (6) motion to reopen untimely. Our holding is consistent with other circuits' interpretations of Rule 4(a) (6). Herrera v. I.N.S., 2 Fed.Appx. 603 (8th Cir. 2001) (unpublished) (holding no appellate jurisdiction because although § 2241 habeas petitioner did not "personally receive notice," the notice to counsel constituted notice to petitioner and thus, the Rule 4(a) (6) motion was untimely); cf. Marcangelo v. Boardwalk Regency, 47 F.3d 88 (3d Cir. 1995) (holding that Rule 4(a) (6) did not allow relief when local counsel failed to communicate the notice of judgment to the client's principal counsel, who was out of state).¹² 

Accordingly, in conclusion, we find counsel's delay in filing the motion to reopen the time to file a notice of appeal resulted in a lack of appellate jurisdiction. Therefore, we must dismiss the appeal.¹³ 

DISMISSED.