                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 03-2681
                               ________________

Roy Edward Franklin,                     *
                                         *
            Appellant,                   *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      Eastern District of Arkansas.
Dick Busby, Sheriff of                   *
Crittenden County,                       *              [UNPUBLISHED]
                                         *
            Appellee.                    *

                               ________________

                               Submitted: November 16, 2004
                                   Filed: January 24, 2005
                               ________________

Before RILEY, JOHN R. GIBSON, and GRUENDER, Circuit Judges.
                          ________________

PER CURIAM.

      After being sentenced to a year’s imprisonment for loitering and possession of
drug paraphernalia by the District Court of West Memphis, Arkansas, Roy Edward
Franklin brought a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The
United States District Court for the Eastern District of Arkansas1 dismissed with

      1
        The Honorable J. Thomas Roy, United States Magistrate Judge for the Eastern
District of Arkansas, to whom the case was referred for final disposition by consent
of the parties pursuant to 28 U.S.C. § 636(c).
prejudice Franklin’s petition, concluding that Franklin’s failure to pursue an appeal
of his state conviction procedurally barred him from federal habeas relief. Because
Franklin failed to file a notice of appeal within 30 days of entry of judgment by the
federal district court, we are obliged to dismiss this appeal for lack of jurisdiction.

I.    BACKGROUND

      On June 28, 2002, Roy Edward Franklin, the petitioner, first appeared before
the District Court of West Memphis, Arkansas on misdemeanor charges of loitering
and possession of drug paraphernalia. On September 6, 2002, Franklin pled no
contest to both charges. Franklin was sentenced to a term of one year’s
imprisonment, a fine of $1,000, and costs of $100.

      Franklin could have appealed his conviction from the state district court and
obtained a trial de novo in the state circuit court. Ark. Inf. Ct. R. 9; Laxton v. State,
899 S.W.2d 479, 480 (Ark. App. 1995) (“[Inferior Court Rule 9] applies to criminal
appeals as well as civil appeals.”). Rather than seek a direct appeal to the Crittenden
County Circuit Court, Franklin chose to pursue state post-conviction relief from that
court. Ark. R. Crim. P. 37.2(c). For a variety of reasons, this petition was never
considered by the state circuit court.

      Consequently, Franklin sought recourse in the federal courts, filing a petition
for habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, he claims that he was
never offered counsel by the District Court of West Memphis nor did he voluntarily
waive his right to counsel.

      The federal district court dismissed with prejudice Franklin’s habeas petition
on March 21, 2003, finding that there was not good cause to excuse the procedural
default resulting from Franklin’s failure to appeal his state conviction. Within 30
days of the entry of judgment, Franklin placed in the prison mail system a filing

                                           -2-
entitled “Response to Order.”2 On June 24, 2003, 94 days after the federal district
court dismissed with prejudice his habeas petition, Franklin filed a document entitled
“Notice of Appeal.” The federal district court construed the notice as a motion for
a certificate of appealability and held that a certificate of appealability should not
issue. This Court, however, issued a certificate of appealability on January 13, 2004,
and appointed counsel under the Criminal Justice Act.

II.   DISCUSSION

       The primary consideration in any appeal is whether the court has jurisdiction
to hear the appeal. Rule 4(a) of the Federal Rules of Appellate Procedure requires
that a party bringing an appeal must file a notice of appeal within 30 days after the
federal district court’s entry of order or judgment. This jurisdictional requirement is
mandatory, thereby depriving the appellate court of jurisdiction when the appealing
party does not comply. 28 U.S.C. § 2107; Fed. R. App. P. 4(a)(1). An appeal will
not, however, be dismissed for informality of form or title. Fed. R. App. P. 3(c)(4);
see also Advisory Committee Notes to Rule 3, 1979 Amendment (“[I]t is important
that the right to appeal not be lost by mistakes of mere form. . . . [S]o long as the
function of notice is met by the filing of a paper indicating an intention to appeal, the
substance of the rule has been complied with.”). Further, the Court will construe a
pro se petitioner’s notice of appeal liberally where “an intent to appeal the judgment
in question [is] apparent and there [is] no prejudice to the adverse party.” Berdella
v. Delo, 972 F.2d 204, 207-08 (8th Cir. 1992); see, e.g., In re Cook, 928 F.2d 262,
263 (8th Cir. 1991) (per curiam) (construing a pro se prisoner’s motion for writs of
mandamus and prohibition as a notice of appeal).

      2
       The issue of this Court’s jurisdiction under Rules 3 and 4 of the Federal Rules
of Appellate Procedure was first raised in Respondent’s brief. We will grant
Appellant’s Motion to Supplement Designated Record with Franklin’s Response to
Order and, as a result, will consider whether Franklin’s Response to Order suffices
as a notice of appeal as he argues in his reply brief.
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       Judgment in this case was entered on March 21, 2003. Ninety-four days later,
Roy Edward Franklin filed a document entitled “Notice of Appeal.” There is little
question that this document served as a notice of appeal. The Court may not,
however, take jurisdiction based on this notice of appeal because it was filed sixty-
four days after the expiration of the 30-day period created by Rule 4(a). “The
‘mandatory and jurisdictional’ requirement that an appellant file a timely notice of
appeal can operate harshly.” Faysound Ltd. v. Falcon Jet Corp., 940 F.2d 339, 345
(8th Cir. 1991) (quoting United States v. Robinson, 361 U.S. 220, 224 (1960)).
Punctilious compliance with the jurisdictional requirements of Rule 4(a), however,
is required even of pro se petitioners. See Turner v. Armontrout, 922 F.2d 492, 493-
94 (8th Cir. 1991).

       In an attempt to overcome this difficulty, Franklin directs the Court’s attention
to his references to “a higher court” in his “Response to Order,” which is deemed to
have been filed within Rule 4(a)’s 30-day time period. He argues that the Response
to Order is the functional equivalent of a notice of appeal. “Whether a particular type
of document is the functional equivalent of a notice of appeal may depend on its
content and surrounding circumstances rather than on any general rule.” Campiti v.
Matesanz, 333 F.3d 317, 320 (1st Cir. 2003); see also Berdella, 972 F.2d at 207-08
(stating that a document is the functional equivalent of a notice of appeal where it
gives the pertinent information and evinces an intent to appeal). We may not,
however, rely on the petitioner’s motivation for making the filing. Smith v. Barry,
502 U.S. 244, 248 (1992). “While a notice of appeal must specifically indicate the
litigant’s intent to seek appellate review, the purpose of this requirement is to ensure
that the filing provides sufficient notice to other parties and the courts.” Id. (citations
omitted). Therefore, the notice afforded by the filing is determinative of whether it
is sufficient as a notice of appeal. Id. at 248-49.

      Based on this legal standard and having thoroughly analyzed the Response to
Order, we conclude that it is insufficient to serve as the functional equivalent of a

                                            -4-
notice of appeal. The document does not indicate an intent to appeal from the federal
district court’s judgment. Nowhere in the Response to Order does Franklin mention
an appeal to this or any other appellate court. Indeed, his two mentions of “a higher
court” appear to refer to the federal district court, rather than to an appellate court.3
The Response to Order does not ask that the federal district court or the respondent
take notice of his desire to appeal, nor did the court or the parties treat it as a notice
of appeal.4 Instead, the Response to Order systematically challenges the federal
district court’s order dismissing his petition for habeas relief. Even giving Franklin
the benefit of liberal construction, the only reasonable conclusion is that the




      3
     In his Response to Order, an eight-paged, single-spaced, hand-written
document, Franklin makes two references to “a higher court.” He writes:

      18.    Petitioner contends that the Respondents contention that
             petitioner is procedurally barred from pursuing this matter in a
             higher court is a failure by those . . . in [the] Community. . . .

      19.    Petitioner contendes, having submitted in writing his complaint
             . . . to state Authorities and their failure to respond in a timely
             manner forfeits the states interest in this matter, thus allowing
             petitioner to seek adjudication in a higher court.

Placed in the context of the Response to Order, these references to “a higher court”
appear to refer to the federal district court as “a higher court” than the state circuit
court. There is no reasonable reading that would suggest that Franklin is referring to
this Court.
      4
       Though not dispositive, our conclusion that the Response to Order was not
intended to serve as a notice of appeal is supported by Franklin’s subsequent filing
of a proper notice of appeal.
                                           -5-
“Response to Order” is more akin to a motion to reconsider5 than to a notice of
appeal. We conclude that the Response to Order is not the functional equivalent of
a notice of appeal.

III.   CONCLUSION

       Because Franklin’s Notice of Appeal was not filed timely and because he did
not file the functional equivalent of a notice of appeal within 30 days of the entry of
judgment, the Court is without jurisdiction. Accordingly, the appeal is dismissed.
                        ______________________________




       5
        A motion to reconsider, whether properly characterized as a motion made
under Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure, may toll the
time to file a notice of appeal. Fed. R. App. Pro. 4(a)(4)(A). Even if we were to
construe the Response to Order as a motion to amend or alter the judgment or as a
motion for relief from judgment, Franklin failed to file it within ten days from the
entry of judgment as required by Fed. R. Civ. P. 59(e) or Fed. R. App. Pro.
4(a)(4)(A)(vi), respectively. United States v. Duke, 50 F.3d 571, 574 (8th Cir. 1995)
(“If [the petitioner’s] motion for reconsideration was not served within ten days of the
entry of judgment, it would not trigger the tolling effect of Rule 4(a)(4).”).
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