                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-8-2006

Rivera v. Comm PA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2072




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-2072


                                   ANGEL RIVERA,

                                                 Appellant

                                            v.

                      COMMONWEALTH OF PENNSYLVANIA;
                      ATTORNEY GENERAL OF PENNSYLVANIA;
                      UNITED STATES ATTORNEY FOR THE MIDDLE
                      DISTRICT OF PA




                      Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                  (D.C. No. 02-cv-08399)
                    District Judge: The Honorable Charles R. Weiner




                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 13, 2006

              Before: BARRY, AMBRO * and ALDISERT, Circuit Judges


*
  Judge Ambro does not join in this opinion. He would have us remand this appeal to the
District Court for further proceedings because he believes that the August 11, 2003 letter,
when considered with the greater leeway we are to offer pro se litigants, should have been
construed by the Court as a motion to reopen its judgment. On remand, whether to grant
Rivera’s Rule 4(a)(6) motion to reopen would be within the sound discretion of the
District Court. See Arai v. American Bryce Ranches Inc., 315 F.3d 1066, 1069 (9th Cir.
2003). Upon review of the record, however, Judge Ambro believes that Rivera is likely
                                  (Filed February 8, 2006)


                               OPINION OF THE COURT


ALDISERT, Circuit Judge.


       Appellant Angel Rivera appeals from a denial of his petition for a writ of habeas

corpus relating to his Pennsylvania state court convictions for robbery, attempted

homicide and conspiracy. Rivera filed a petition for relief under 28 U.S.C. § 2254 in the

United States District Court for the Eastern District of Pennsylvania. The District Court

restricted its analysis to Rivera’s Brady claims, which had been exhausted in the state

courts. The court then ruled against Rivera on those claims, finding that the state courts’

adjudication of them was “not contrary to clearly established Supreme Court precedent.”

Nevertheless, in its Order, the court granted Rivera a certificate of appealability as to

those Brady claims, which Rivera now raises before us. We cannot reach the merits of

his appeal, however, because we perceive that a problem of jurisdiction in this Court

exists. Accordingly, we will dismiss the appeal.

                                              I.



to have that motion granted because it appears he (1) satisfies the requirements of Rule
4(a)(6) and (2) raises potentially meritorious issues in his habeas petition our Court
should address (indeed, one of which the District Court granted a Certificate of
Appealability)—specifically, whether the prosecution committed a Brady violation by,
inter alia, failing to disclose the note found in Santos’ apartment.

                                              2
         Because the parties are familiar with the facts and the proceedings in the District

Court, we will only recite those facts necessary to the discussion.

         “The timeliness of an appeal is a mandatory jurisdictional prerequisite.” Poole v.

Fam. Ct. of New Castle County, 368 F.3d 263, 264 (3d Cir. 2004). In a habeas

proceeding, a petitioner cannot take an appeal unless a district court first issues a

certificate of appealability under 28 U.S.C. § 2253(c). Rule 22, Federal Rules of

Appellate Procedure. In its Order denying habeas relief dated April 16, 2003, the District

Court issued a certificate of appealability limited to Rivera’s Brady claims. Rivera

accordingly had 30 days from that date to file a notice of appeal. See Rule 4(a)(1)(A),

Federal Rules of Appellate Procedure. That deadline passed with no such notice being

filed.

         Because Rivera did not file a timely notice of appeal, we must then examine

whether he filed a proper motion to reopen, which would allow him to later file an

untimely notice of appeal. See Rule 4(a)(6), Federal Rules of Appellate Procedure.2 The



2
    Rule 4(a)(6) states:

         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 court finds that the moving party did not receive notice under
                Federal Rule of Civil Procedure 77(d) of the entry of the judgment or
                order sought to be appealed within 21 days after entry;
         (B)    the motion is filed within 180 days after the judgment or order is
                entered or within 7 days after the moving party receives notice under

                                                3
provisions of Rule 4(a)(6) are “mandatory and jurisdictional” and we “are required to

dismiss untimely appeals sua sponte.” Marcangelo v. Boardwalk Regency, 47 F.3d 88, 91

(3d Cir. 1995) (citations and internal quotations omitted). Rivera contends that he did not

receive notice of the entry of the District Court's judgment until August 6, 2003.3 By this

time, in order to be able to file an untimely notice of appeal, Rivera was required to file a

motion to reopen with the District Court by August 13, 2003.4 See Rule 4(a)(6)(B),

Federal Rules of Appellate Procedure (stating that a motion to reopen must be filed within

seven days of the party receiving notice of the entry of judgment).

        The only document that the court received from Rivera that could arguably be




               Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier;
               and

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


3
    The Docket Sheet that Rivera allegedly received on August 6, 2003, stated:

         MEMORANDUM AND OPINION AND ORDER THAT THE
         UNEXHAUSTED CLAIMS CONTAINED IN THE PETITION OF
         PETITIONER FOR WRIT OF HABEAS COPRUS [sic] ARE DISMISSED
         WITHOUT PREJUDICE. THE PETITION IS DENIED IN ALL OTHER
         REGARDS. A CERTIFICATE OF APPEALABILITY IS GRANTED
         LIMITED TO THE EXHAUSTED BRADY CLAIMS ADJUDICATED
         HEREIN. SIGNED BY JUDGE CHARLES R. WEINER ON 4/16/03.
         ENTERED AND COPIES MAILED. (lvj,) (Entered: 04/16/2003)
4
  Ordinarily, the issue of when notice was received is a factual question to be found by
the District Court, see Nunley v. City of Los Angeles, 52 F.3d 792, 796 (9th Cir. 1995),
but for the purposes of our discussion we will accept as true Rivera’s averment that he did
not receive notice until August 6, 2003.

                                               4
construed as a motion to reopen was a letter dated August 11, 2003 (hereinafter “the

August letter”) that stated that he only recently received notice of the entry of judgment

and requested information on how to proceed.5 Misreading Rule 4(a)(6), Rivera now

contends that this letter is a notice of appeal. Because a notice of appeal filed on August

11, 2003, would be untimely, see Rule 4(a)(1)(A), Federal Rules of Appellate Procedure

(stating that a notice of appeal must be filed within 30 days of the entry of judgment), the

real question is not whether the August letter constitutes a notice of appeal, but whether it

is a proper motion to reopen under Rule 4(a)(6).6 See Poole, 368 F.3d at 264 (focusing


5
    The August letter is as follows:

         Dear Clerk of Court:
                 First of all, I wish you in GOD’s loving hands, and in the best of health.
         I just received the copy of my docket sheet, that I requested. Thank you so
         much . . . But to my surprise, I noticed that a “MEMORANDUM AND
         OPINION AND ORDER” was entered on “April 16, 2003”. In which I never
         received a copy of said “Memorandum and Opinion and Order”. I truly
         thought, that I was still waiting on a decision. Can you please send me a
         complete copy, of said “Memorandum And Opinion And Ordered” entered on
         04/16/03, and as to how I should proceed now. I now leave everything in
         GOD’s merciful hands, and yours. Awaiting on your prompt reply, and
         thanking you in advance, for all your help and cooperation, in this grave and
         urgent matter.

         Respectfully,
         /s/ Mr. Angel Rivera
6
  Rivera also wrote letters on September 19, 2003, and November 16, 2003, in which he
similarly expressed his surprise in the recent entry of judgment and requested a copy of
the Memorandum and Order. We do not address them here because even if those letters
could be construed as motions to reopen, they were untimely. Both letters were submitted
more than seven days after Rivera received notice of the entry of judgment. See Rule
4(a)(6)(B), Federal Rules of Appellate Procedure.

                                                 5
upon whether a motion to reopen was filed when all that was received was an untimely

notice of appeal).

       Having examined the August letter, we conclude as a matter of law that it does not

constitute a motion to reopen. We make this decision mindful that we are to grant pro

se litigants “greater leeway where they have not followed the technical rules of pleading

and procedure.” See Tabron v. Grace, 6 F.3d 147, 153 n.2 (3d Cir. 1993). We also

acknowledge that captions and titles that a pro se litigant places upon filings are

irrelevant; rather, it is the function and substance of the documents that are determinative.

Lewis v. Att’y Gen. of U.S., 878 F.2d 714, 722 n.20 (3d Cir. 1989); see also Torres v.

Oakland Scavenger Co., 487 U.S. 312, 316-317 (1988) (examining whether the pro se

appellant’s filing accomplished the “functional equivalent of what the rule requires”).

Nonetheless, a writing must contain some indicia from which a district court can conclude

that a Rule 4(a)(6) motion to reopen is before it. See Campos v. LeFevre, 825 F.2d 671,

676 (2d Cir. 1987) (“[N]o particular form of words is necessary to render a filing a

‘motion.’ Any submission signed by a party that may fairly be read as a request to the

district court to exercise its discretionary powers to permit a late appeal should suffice.”);

see also U.S. v. Feuver, 236 F.3d 725, 729 (D.C. Cir. 2001) (concluding ultimately that

there was no such indicia in litigant’s pro se “Motion for Determination of Status”).

Accordingly, notwithstanding the leniency that we give pro se litigants’ filings, the

August letter is not a motion to reopen. See Poole, 368 F.3d at 268 (“Appellate Rule



                                              6
4(a)(6) requires a motion to reopen.”). There are no indicia in the August letter from

which the District Court could have concluded that a Rule 4(a)(6) motion to reopen was

before it. We therefore lack jurisdiction over this appeal.

                                            III.

       We have considered all contentions presented by the parties and conclude that no

further discussion is necessary. We will dismiss the appeal for lack of jurisdiction.
