                       FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 WESLEY HARLAN KINGSBURY,                       No. 16-56789
        Petitioner-Appellant,
                                                 D.C. Nos.
                  v.                        2:15-cv-09697-DSF
                                           2:12-cr-00903-DSF-3
 UNITED STATES OF AMERICA,
        Respondent-Appellee.                      OPINION



         Appeal from the United States District Court
            for the Central District of California
          Dale S. Fischer, District Judge, Presiding

             Argued and Submitted July 10, 2018
                    Pasadena, California

                       Filed August 21, 2018

      Before: D. Michael Fisher, * Paul J. Watford, and
           Michelle T. Friedland, Circuit Judges.

                        Per Curiam Opinion




    *
      The Honorable D. Michael Fisher, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
2                KINGSBURY V. UNITED STATES

                          SUMMARY **


                         28 U.S.C. § 2255

   The panel held that Federal Rule of Civil Procedure 58’s
requirement that a separate document be filed upon entry of
judgment applies in proceedings under 28 U.S.C. § 2255.

    The panel concluded that the petitioner’s notice of appeal
was therefore timely, and that this court has jurisdiction over
his appeal. In a concurrently filed order, the panel granted
in part the petitioner’s request for a certificate of
appealability and set a briefing schedule.


                            COUNSEL

Stephanie Marie Adraktas (argued), Berkeley, California,
for Petitioner-Appellant.

Christopher Jackson Smith (argued) and Michael A. Rotker,
Attorneys; John P. Cronan, Acting Assistant Attorney
General; Appellate Section, Criminal Division, United
States Department of Justice, Washington, D.C.; for
Respondent-Appellee.




    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
              KINGSBURY V. UNITED STATES                   3

                        OPINION

PER CURIAM:

    After pleading guilty to fraud-related charges and being
sentenced, Wesley Kingsbury filed a motion under 28 U.S.C.
§ 2255 seeking to vacate his guilty plea and sentence. The
district court denied that motion, but it did not enter
judgment in a separate document.

    Kingsbury filed a notice of appeal just over two months
after the district court denied his § 2255 motion. Whether
his notice of appeal was timely depends on whether Federal
Rule of Civil Procedure 58’s requirement that a separate
document be filed upon entry of judgment applies in § 2255
proceedings. The parties here agree that Rule 58’s separate
document requirement does apply, but because this question
determines whether we have appellate jurisdiction over
Kingsbury’s appeal, we must resolve it ourselves. See WMX
Techs., Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997)
(en banc). We now join the majority of our sister circuits in
holding that Rule 58’s separate document requirement
applies in § 2255 proceedings. Kingsbury’s notice of appeal
was therefore timely, and we accordingly have jurisdiction
over his appeal.

                             I.

    Kingsbury pled guilty to one count each of conspiracy to
commit health care fraud, conspiracy to obstruct a Medicare
audit, and making a materially false statement to law
enforcement officers. He was sentenced to 78 months in
prison. Kingsbury appealed his convictions and sentence but
voluntarily dismissed his appeal before filing an opening
brief.
4              KINGSBURY V. UNITED STATES

    Kingsbury then filed a pro se sworn motion under
28 U.S.C. § 2255, seeking to vacate his conviction and
sentence on several grounds, including that his counsel was
ineffective and that his guilty plea was not knowing,
voluntary, and intelligent. The district court denied the
motion and declined to issue a certificate of appealability.
But it did not file a document entering judgment separate
from its order denying the § 2255 motion. Kingsbury filed
a pro se notice of appeal, which also serves as a request for
a certificate of appealability, see 9th Cir. R. 22-1(d), 64 days
after the district court denied his motion.

    Unsure whether the notice of appeal had been filed in
time to give us jurisdiction, we appointed counsel and
ordered briefing so we could “determine whether entry of a
separate judgment is required in section 2255 proceedings
and whether this court has jurisdiction over appellant’s
request for a certificate of appealability.” Our order
recognized that it was “an open question in this Circuit as to
whether Fed. R. Civ. P. 58(a) requires the entry of judgment
on a separate document when a district court enters an order
denying relief in 28 U.S.C. § 2255 proceedings,” that
“[o]ther Circuits are split on this issue,” and that “[i]f entry
of a separate judgment [were] required, appellant’s notice of
appeal was timely.”

                              II.

    Section 2255 proceedings are governed by procedural
rules developed by the Supreme Court and adopted by
Congress. See generally Rules Governing Section 2255
Proceedings for the United States District Courts. Those
rules set the time for the losing party to appeal from the
district court’s disposition of § 2255 motions. Rule 11 of the
Rules Governing Section 2255 Proceedings for the United
States District Courts (“Rule 11”) states that “Federal Rule
                 KINGSBURY V. UNITED STATES                            5

of Appellate Procedure 4(a) governs the time to appeal an
order entered under these rules.” Federal Rule of Appellate
Procedure 4(a), in turn, states that a notice of appeal must be
filed “within 60 days after entry of the judgment or order
appealed from” when the United States is a party, Fed. R.
App. P. 4(a)(1)(B), and that a judgment or order is entered
for purposes of Rule 4(a) when it is entered in compliance
with Rule 58(a) of the Federal Rules of Civil Procedure, Fed.
R. App. P. 4(a)(7). 1 Under Rule 58, an order that is
dispositive of the proceedings is usually insufficient to enter
judgment. Fed. R. Civ. P. 58(a). Instead, judgment must be
expressly entered in a “separate document,” except when the
district court decides certain listed motions—which do not
include § 2255 motions. 2 Fed. R. Civ. P. 58(a), (c)(2)(A). If
a separate document is required, and one is not filed,
judgment is entered automatically 150 days after the court
enters an order disposing of a case. Fed. R. Civ. P.
58(c)(2)(B).

   Integral to the time for appeal in Rule 4, therefore, is the
event that starts the time in which a party can appeal—
specifically, either the filing of a separate document entering

    1
      Federal Rule of Appellate Procedure 4 also provides that the entry
of judgments or orders must comply with Federal Rule of Civil
Procedure 79(a), which, in turn, offers guidance to district court clerks
on how to enter judgments and orders on the docket. Fed. R. App. P.
4(a)(7).

    2
      Precisely what constitutes a “separate document” is not at issue
here. There is no dispute that, if Rule 58’s separate document
requirement applies, the order denying Kingsbury’s § 2255 motion was
not a separate document within the meaning of that rule because it
contained substantial discussion of the law and facts. See Vernon v.
Heckler, 811 F.2d 1274, 1276 (9th Cir. 1987).
6                KINGSBURY V. UNITED STATES

judgment or the passage of 150 days. See United States v.
Johnson, 254 F.3d 279, 284 (D.C. Cir. 2001) (“Nothing in
the language of Rule 11 . . . suggests that courts should apply
Rule 4(a)’s time limit without also applying its criterion for
determining when that limit begins to run.”). Taken
together, these rules suggest that Rule 58’s separate
document requirement applies to § 2255 proceedings. 3

    The advisory committee notes accompanying Rule 11
further support this conclusion. Those notes cite United
States v. Hayman, 342 U.S. 205 (1952), for the proposition
that appeals from orders denying § 2255 motions “are
governed by the civil rules applicable to appeals from final
judgments in habeas corpus actions”—writ actions that are
available, for example, to challenge state custody under 28
U.S.C. § 2254 but that have been almost entirely supplanted
by the motions mechanism of 28 U.S.C. § 2255 in challenges
to federal custody. See Rule 11, advisory committee’s note
to 1979 amendment (quoting Hayman, 342 U.S. at 209 n.4).
Those civil rules applicable to appeals from district courts’
resolution of habeas corpus petitions include the separate
document requirement of Rule 58. See, e.g., Mitchell v.
Idaho, 814 F.2d 1404, 1405–06 (9th Cir. 1987).

    Requiring entry of judgment in a separate document
under Rule 58 to start the clock on the 60-day time to appeal
is also consistent with the rule’s goal to demarcate the time

    3
      As mentioned above, the parties here are in agreement that Rule
58’s separate document requirement applies to § 2255 proceedings.
Indeed, since at least 2001, the Government appears to have “taken the
position that Rule 58 applies” in this circumstance. See Johnson,
254 F.3d at 283 n.2. But the parties’ agreement does not eliminate the
need to independently assess whether we have jurisdiction. See WMX
Techs., Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997) (en banc).
                  KINGSBURY V. UNITED STATES                            7

to appeal more clearly. See Fed. R. Civ. P. 58, advisory
committee’s note to 1963 amendment (describing the rule as
“eliminat[ing] [prior] uncertainties by requiring that there be
a judgment set out on a separate document”). Many
defendants—like Kingsbury here—proceed pro se on
collateral review and particularly benefit from greater clarity
on procedural requirements. 4 Cf. Rand v. Rowland, 154 F.3d
952, 958 (9th Cir. 1998) (en banc) (interpreting the Federal
Rules of Civil Procedure as mandating notice to pro se
prisoner litigants regarding the requirements of the summary
judgment rule because that reading “effectuates the purpose
of the Federal Rules to eliminate ‘procedural booby traps’
which could prevent ‘unsophisticated litigants from ever
having their day in court’” (quoting Surowitz v. Hilton
Hotels Corp., 383 U.S. 363, 373 (1966))).



    4
        We recognize that § 2255 motions are similar in some ways to
motions under Federal Rule of Civil Procedure 60, and that the time to
appeal from the disposition of Rule 60 motions runs from the entry of
the order, not from the filing of a separate document entering judgment.
See Fed. R. Civ. P. 58(a)(5). But Federal Rule of Civil Procedure 58 lists
the five types of orders after which no separate document is required to
start the time to appeal. Orders on Rule 60 motions are listed. Orders
on § 2255 motions are not. And Rule 11 did not say anything to
effectively add them to that list. Holding that motions similar to those
listed are included by implication, in the absence of any indication that
the list was intended to be non-exclusive, would create exactly the sort
of murkiness about the time to appeal that Rule 58 was intended to avoid.
See United States v. Indrelunas, 411 U.S. 216, 221–22 (1973) (per
curiam) (explaining that “the separate document provision of Rule 58 is
. . . a mechanical change that must be mechanically applied in order to
avoid new uncertainties as to the date on which a judgment is entered”
(internal quotation marks and citation omitted)), abrogated in part on
other grounds by Bankers Tr. Co. v. Mallis, 435 U.S. 381, 386 n.7 (1978)
(per curiam).
8                KINGSBURY V. UNITED STATES

    The majority of circuits to have considered the question
agree that Rule 58’s separate document requirement applies
to § 2255 proceedings. The Third, Fifth, Sixth, Eighth, and
D.C. Circuits have all reached this conclusion. 5 See Gillis v.
United States, 729 F.3d 641, 643 (6th Cir. 2013); Jeffries v.
United States, 721 F.3d 1008, 1012–13 (8th Cir. 2013);
United States v. Fiorelli, 337 F.3d 282, 285–87 (3d Cir.
2003); Johnson, 254 F.3d at 283–85; Sassoon v. United
States, 549 F.2d 983, 984 (5th Cir. 1977).

     Only the Second Circuit has held otherwise, grounding
its reasoning in the observation that “a motion under § 2255
is a further step in the movant’s criminal case and not a
separate civil action.” Williams v. United States, 984 F.2d
28, 30 (2d Cir. 1993) (quoting Rule 11, advisory
committee’s note to 1979 amendment). It is true that Rule
58 is a civil rule and that § 2255 proceedings have some
procedural characteristics that might appear to weigh against
application of the civil rules. But given the specific wording
of the applicable rules, which indicate that the civil
requirements for the time to appeal apply here, we do not
need to reach a conclusion about the civil or criminal nature
of § 2255 proceedings generally.

    We therefore join the majority of our sister circuits in
holding that Rule 58’s separate document requirement
applies to § 2255 proceedings. If a separate document
entering judgment is filed with the order resolving a § 2255

    5
      The Seventh Circuit at one point seemed to have held that Rule
58’s separate document requirement applied to § 2255 appeals. See
Hope v. United States, 43 F.3d 1140, 1142 & n.1 (7th Cir. 1994); see
also Morales v. Bezy, 499 F.3d 668, 671 (7th Cir. 2007). But the Seventh
Circuit has since stated that it has not decided the question,
notwithstanding Hope. See Lawuary v. United States, 669 F.3d 864, 866
(7th Cir. 2012).
                 KINGSBURY V. UNITED STATES                          9

motion, the losing party has 60 days to file a notice of appeal.
Otherwise, it has 60 days from when judgment is
automatically entered 150 days after the filing of the order,
for a total of 210 days.

                                 III.

   As described above, the district court did not file a
separate document entering judgment under Rule 58 after
denying Kingsbury’s § 2255 motion. If a separate document
were not required, the notice of appeal Kingsbury filed
64 days after the order denying his § 2255 motion would
have been 4 days late, and we would have been deprived of
appellate jurisdiction. See Fed R. App. P. 4(a). 6

    But because Rule 58’s separate document requirement
applies, final judgment was entered as of 150 days after the
district court denied the § 2255 motion. Fed R. Civ. P.
58(c)(2)(B). Kingsbury filed his notice of appeal during
those 150 days, so his notice was timely. See Fed. R. App.
P. 4(a)(2) (“A notice of appeal filed after the court
announces a decision or order—but before the entry of the
judgment or order—is treated as filed on the date of and after
the entry.”); FirsTier Mortg. Co. v. Inv’rs Mortg. Ins. Co.,
498 U.S. 269, 273 (1991) (observing that Federal Rule of
Appellate Procedure 4(a)(2) “recognizes that, unlike a tardy
notice of appeal, certain premature notices do not prejudice

    6
       The time to appeal in Rule 4(a) is set by statute. See 28 U.S.C.
§ 2107(a)–(b). As statutory time limits, Rule 4(a)’s deadlines are
jurisdictional. See Bowles v. Russell, 551 U.S. 205, 212–13 (2007). We
have held that Rule 4(a)’s deadlines are jurisdictional in § 2255
proceedings. See United States v. Hayat, 710 F.3d 875, 903 (9th Cir.
2013) (holding that we “lack[ed] jurisdiction to review the district
court’s dismissal of [a defendant’s] § 2255 motion” when he “did not
timely file a notice of appeal”).
10            KINGSBURY V. UNITED STATES

the appellee and that the technical defect of prematurity
therefore should not be allowed to extinguish an otherwise
proper appeal”).

                            IV.

   For the forgoing reasons, we have jurisdiction over
Kingsbury’s appeal.

    We GRANT in part Kingsbury’s request for a
certificate of appealability and set a briefing schedule in a
concurrently filed order.
