                              PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 15-6248


KEITH ALAN CLARK,

                Petitioner - Appellant,

           v.

LARRY CARTLEDGE, Warden Perry Correctional Institution,

                Respondent - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.      Bruce H. Hendricks, District
Judge. (0:13-cv-00351-BHH)


Argued:   May 12, 2016                     Decided:   July 12, 2016


Before GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit
Judges.


Jurisdiction affirmed by published opinion. Chief Judge Gregory
wrote the opinion, in which Judge Harris joined. Judge Niemeyer
wrote a dissenting opinion.


ARGUED:    Dana Wallace, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant.    Susannah Rawl Cole,
OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia,
South Carolina, for Appellee.      ON BRIEF:   Stephen L. Braga,
Jude Halawi, Third Year Law Student, Andrew Selman, Third Year
Law Student, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA
SCHOOL   OF   LAW,  Charlottesville,  Virginia,   for  Appellant.
Alan Wilson, Attorney General, John W. McIntosh, Chief Deputy
Attorney General, Donald J. Zelenka, Senior Assistant Deputy
Attorney General, Brendan J. McDonald,    Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL   OF SOUTH CAROLINA,
Columbia, South Carolina, for Appellee.




                            2
GREGORY, Chief Judge:

      Rule    3   of    the    Federal       Rules      of    Appellate        Procedure

conditions federal appellate jurisdiction on the filing of a

timely notice of appeal.         In this case, we hold that a document

filed by a pro se litigant as an extension of time to request a

certificate of appealability qualifies as the notice of appeal

required by Rule 3.



                                         I.

      In 2006, Keith Alan Clark, after a jury trial in South

Carolina, was found guilty of kidnapping and assault with intent

to commit criminal sexual conduct.                     The trial court sentenced

Clark to concurrent sentences of thirty years.                      After a series

of unsuccessful appeals and postconviction procedures in South

Carolina     courts,   Clark    filed    a       pro   se    petition    for    writ   of

habeas corpus in the U.S. District Court for the District of

South Carolina pursuant to 28 U.S.C. § 2254.                            Clark alleged

several constitutional violations stemming from his conviction,

including, among others, that he received ineffective assistance

of counsel in violation of the Sixth Amendment.

      In response to Clark’s petition, the state, representing

Warden Larry Cartledge, filed a motion for summary judgment,

which was referred to a magistrate judge.                     On February 3, 2014,

the   magistrate       judge   issued        a    report      and   recommendation,
recommending that the state’s motion for summary judgment be

granted.    Clark then timely filed objections to the report and

recommendation.     On December 4, 2014, the district court issued

its    judgment   and   order,    overruling    Clark’s     objections     and

adopting the magistrate judge’s report and recommendation.                 In

that same order, the district court denied Clark a certificate

of    appealability,    finding   that   he   failed   to   meet   28   U.S.C.

§ 2253(c)’s standard for issuance of such a certificate.

       On December 18, 2014, Clark, still pro se, filed a motion

for extension of time to request a certificate of appealability. 1

The question at heart in this case is whether this motion, filed

within the thirty day requirement of Federal Rule of Appellate

Procedure 4, is the functional equivalent of a formal notice of

appeal demanded by Rule 3.         See Becker v. Montgomery, 532 U.S.

757, 765 (2001) (stating that a party seeking appellate review

must comply with the “linked jurisdictional provisions” of Rules

3 and 4 of the Rules of Appellate Procedure).               If we construe

the motion for an extension of time as a notice of appeal, then

all events that occurred in the district court after the notice

of appeal was filed are of no moment, as a “timely filed notice


       1
       The district court denied Clark’s motion in a text order
on December 23, 2014. On January 22, 2015, Clark filed a motion
for certificate of appealability with the district court, which
the court denied on January 27, 2015. Clark then filed a notice
of appeal on February 11, 2015.


                                     4
of    appeal    transfers    jurisdiction     of    a    case    to    the    court   of

appeals and strips a district court of jurisdiction to rule on

any matters involved in the appeal.”               Doe v. Public Citizen, 749

F.3d 246, 258 (4th Cir. 2014).



                                      II.

       We review our own jurisdiction de novo and must raise the

issue sua sponte.           Kporlor v. Holder, 597 F.3d 222, 225 (4th

Cir. 2010).

       Federal Rule of Appellate Procedure 3(c) dictates that a

“notice of appeal must specify the party or parties taking the

appeal . . .; designate the judgment, order or part thereof

being    appealed;    and    name   the   court     to    which       the    appeal   is

taken.”        Fed. R. App. P. 3(c).          In addition, the notice of

appeal “must specifically indicate the litigant’s intent to seek

appellate review . . . [to] ensure that the filing provides

sufficient notice to other parties and the courts.”                           Smith v.

Barry, 502 U.S. 244, 248 (1992).

       While the requirements of Rule 3 serve important purposes

and    are   mandatory   and    “jurisdictional         in    nature,”       Torres   v.

Oakland Scavenger Co., 487 U.S. 312, 316 (1988), “functional”

rather    than    formalistic    compliance        is   all     that   is    required,

Smith, 502 U.S. at 248.          As another subsection of Rule 3 warns,

an appeal “must not be dismissed for informality of form or

                                          5
title . . . , or for failure to name a party whose intent to

appeal is otherwise clear from the notice.”                                Fed. R. App. P.

3(c)(4).          And      as     the       Supreme        Court       has      instructed,

“imperfections in noticing an appeal should not be fatal where

no    genuine    doubt     exists       about      who    is    appealing,       from   what

judgment, to which appellate court.”                     Becker, 532 U.S. at 767.

       Courts thus “will liberally construe the requirements of

Rule 3,” Smith, 502 U.S. at 248, to permit notices of appeal

“technically at variance with the letter of a procedural rule”

but that amount to “the functional equivalent of what the rule

requires,” Torres, 487 U.S. at 316–17.                         We, moreover, have held

that    the     policy    of    construing          notices      of    appeal    liberally

applies    “especially”         to    pro     se    filings.          United     States   v.

Garcia, 65 F.3d 17, 19 (4th Cir. 1995).                         Therefore, as long as

the pro se party’s notice of appeal provided the notice required

by Rule 3, evinced an intent to appeal an order or judgment of

the    district    court,       and   the     appellee         was    not    prejudiced   or

misled by the notice, then the notice’s technical deficiencies

will not bar appellate jurisdiction.                       See Jackson v. Lightsey,

775 F.3d 170, 175-76 (4th Cir. 2014) (“Where a challenged notice

of     appeal     has     provided       adequate         notice       and     caused     the

complaining party no prejudice, there is no reason to allow a

‘technical       impediment[ ]’          to        foreclose         appellate    review.”

(quotation      and     citations     omitted));         Canady       v.    Crestar   Mortg.

                                              6
Corp., 109 F.3d 969, 974–75 (4th Cir. 1997) (finding compliance

with Rule 3 in light of adequate notice and lack of prejudice to

the appellee); Smith, 502 U.S. at 248 (notice afforded by a

document determines the document’s sufficiency as a notice of

appeal).



                                           III.

      With these principles in mind, we turn to the facts of this

case.       Clark filed a “Motion for Extension of Time to request

for     a   Certificate      of    Appealability.”          J.A.     621.           Clark,

represented       by    counsel    on     appeal,   contends      that       his    motion

served      as   the    functional      equivalent    of    a    notice       of    appeal

because it specified the party taking the appeal and the order

being appealed.          Clark further argues that while his motion did

not specify the court to which the appeal was being taken, we

have allowed appeals where “there is only one possible appellate

forum,” even when the party fails to “add the words ‘Fourth

Circuit’ to [their] notice of appeal.”                     Jackson, 775 F.3d at

175-76.      We agree.

      In that motion, Clark identifies himself as the person who

intends to appeal, as well as the order he intends to appeal –

the     district       court’s    order    denying    his       objections         to   the

magistrate judge’s report and recommendation.                     Moreover, Clark’s

intent      to   appeal     to    this     Court    “is    obvious       –    the       term

                                            7
‘certificate of appealability’ necessarily refers to an appeal

to the relevant court of appeals.”                    Wells v. Ryker, 591 F.3d

562, 565 (7th Cir. 2010); see also 28 U.S.C. § 2253 (allowing

review of a final order “by the court of appeals for the circuit

in which the proceeding is held” only if a “circuit justice or

judge issues a certificate of appealability”).

      The   state     does   not,    and   cannot,         seriously     dispute     that

Clark’s     motion    complied      with   Rule       3.     In     fact,   the     state

conceded during oral argument that Clark’s motion satisfied the

notice requirements of Rule 3.                 Rather, the state argues that

Clark’s motion did not convey any intention to appeal at all,

and “shows only that he may wish to seek appellate review at

some point in the future;” “in other words, [the motion is]

speculative.”        State’s Br. at 6.         We disagree.

      To be sure, a motion for an extension of time on its face

might   not    conclusively       show     subjective        certainty      about    the

party’s desire to appeal.             “But this view loses sight of the

fact that it is ‘the notice afforded by a document, not the

litigant’s     motivation      in    filing      it,       [that]    determines       the

document’s sufficiency as a notice of appeal.’”                          Isert v. Ford

Motor Co., 461 F.3d 756, 762 (6th Cir. 2006) (quoting Smith, 502

U.S. at 249).        Thus Clark’s subjective intent - if it was indeed

to only seek appellate review in the future - is irrelevant.

The   relevant   inquiry     is     whether     the    “notice      of   appeal     . . .

                                           8
specifically indicate[s] the litigant’s intent to seek appellate

review.”         Smith, 502 U.S. at 248.

       Here, as already noted, Clark’s motion complied with Rule

3’s    notice         requirements.      Further,       Clark,    in   support          of   his

motion for extension of time states:                      “[I]n order to properly

file       for    a    Certificate      of    Appealability,         [I]     request[]        an

additional fifteen (15) days beyond the current due date.”                                   J.A.

621.       The reason for his request?                 Clark had limited access to

the prison law library, which “prevent[ed] him from conducting

the necessary legal research to properly file.”                        Id.

       There      would      be   little      reason    for    Clark       to   request       an

extension         of      time     to    properly       file     a     certificate            of

appealability           if   he   did   not   intend     to    appeal.          Under    these

circumstances, we believe that there could be no genuine doubt

that the motion for extension of time indicates Clark’s intent

to appeal the district court’s order overruling his objections

to the magistrate judge’s report and recommendation, and that

motion sufficed to put the state on notice of that intent. 2                                 And,

to require more explicit language from a pro se litigant would

turn Smith’s instruction that we liberally construe Rule 3’s




       2
       The state does not contend that it will suffer any
prejudice if we construed Clark’s motion as a notice of appeal.



                                               9
requirements on its head.         Thus, we conclude that Clark’s motion

evinced a desire to appeal. 3

      Remarkably, the dissent contends that our holding today is

“unprecedented,” “stretch[ing] the functional equivalency test

far beyond its defined bounds.”              Dissenting Op. at 13, 17.             But

the dissent’s contention conveniently ignores precedent in other

circuits.    In    truth,   our   conclusion           today    –   this   “untenable

fabrication,” as the dissent would have it, id. at 21 - flows

naturally from our own precedent, see e.g., Garcia, 65 F.3d at

19    (“[P]leadings      under    Rule       3     are       liberally     construed,

especially   pro   se    pleadings.”),           and   is    consistent     with   the

holdings of other circuits, see, e.g., Rountree v. Balicki, 640

F.3d 530, 536 (3d Cir. 2011) (“By indicating [, in his motion

for    extension    of     time    to     file         for     a    certificate     of

appealability,     that]    he    would      file        for    a   certificate     of

      3Our jurisdictional inquiry has one more step, and that is
Clark’s failure to secure a certificate of appealability, as
required by 28 U.S.C. § 2253(c).     The district court denied a
certificate of appealability, and Clark presented no request for
a certificate of appealability to this Court as permitted by
Federal Rule of Appellate Procedure 22(b).      Having construed
Clark’s motion for an extension of time to request a certificate
of appealability as a notice of appeal, however, we will also
construe it as a request for a certificate of appealability.
See Jones v. Braxton, 392 F.3d 683, 689 (4th Cir. 2004) (“Under
Federal Rule of Appellate Procedure 22(b), we are required to
construe the notice of appeal that Jones filed as an application
for a certificate of appealability.”); see also Fed. R. App. P.
22(b)(2) (“If no express request for a certificate [of
appealability] is filed, the notice of appeal constitutes a
request addressed to the judges of the court of appeals.”).


                                        10
appealability,     his    pro    se     motion   evidenced      an    intention            to

appeal,    which   means        it    constituted       a   notice        of    appeal.”

(quotation marks and citation omitted)); Wells, 591 F.3d at 565

(“[T]he motion for extension of time to request a certificate of

appealability      is    an     attenuated       example       of     a        functional

equivalent to a notice of appeal, and probably lies at the outer

limit of what motions may suffice under Smith v. Barry.                             But, we

are confident that the appellant’s motion in this case served

adequate notice under the Rule.”).

       Interestingly, the state cited Bailey v. Cain, 609 F.3d 763

(5th   Cir.   2010),     for    the    proposition      that    a    motion         for   an

extension of time to file a certificate of appealability does

not qualify as a notice of appeal.                     Not only is the state’s

reliance   on   that     case    misplaced,      but    the    holding         in    Bailey

should assuage the state’s concern that our decision today will,

in effect, eliminate, undermine, or abolish the Federal Rules of

Appellate Procedure.           In Bailey, the Fifth Circuit assumed that

a motion for an extension of time to file a certificate of

appealability could provide adequate notice under Rule 3.                                 Id.

at 766.    The court, however, concluded that Bailey’s motion came

up short; “[o]mitted from Bailey’s motion that was present in

Wells is a specific reference to the judgment or order from

which appeal was taken.”              Id.    Because Bailey’s motion did not

satisfy two of the three notice requirements of Rule 3, the

                                            11
court held that Bailey’s motion to extend was not a functional

equivalent of a notice of appeal.      Id. at 767.   In other words,

noncompliance with Rule 3 was “fatal,” see Smith, 502 U.S. at

248, to Bailey’s appeal.

     The result in Bailey illustrates why the state’s doomsday

scenario - this Court automatically treating every motion for

extension of time as a notice of appeal – will never occur.       In

order for us to find that a motion for an extension of time is

the functional equivalent of a notice of appeal, the litigant’s

motion must be timely under Rule 4 and must satisfy the notice

requirements of Rule 3.    Clark’s motion did just that.



                                 IV.

    For the foregoing reasons, we have jurisdiction to consider

Clark’s application for a certificate of appealability.



                                              JURISDICTION AFFIRMED




                                 12
NIEMEYER, Circuit Judge, dissenting:

      On    December    4,       2014,   the       district         court    entered      final

judgment denying Keith Clark’s petition under 28 U.S.C. § 2254

for a writ of habeas corpus.                  Clark filed his notice of appeal

63   days    later,     on   February          5,       2015,       which    was    therefore

untimely.         See 28 U.S.C. § 2107(a) (requiring that notice of

appeal be filed within 30 days after the entry of judgment);

Fed. R. App. P. 4(a)(1)(A) (same).                          Because the requirement for

timely      filing     a     notice       of           appeal       is      “mandatory        and

jurisdictional,” Bowles v. Russell, 551 U.S. 205, 209-10 (2007),

we are required to dismiss Clark’s appeal.

      In    an    unprecedented      opinion,               the   majority      holds    that    a

motion that Clark filed on December 18, 2014, for an extension

of   time    to    request   a     certificate               of   appealability         was   the

functional equivalent of a notice of appeal that satisfied the

jurisdictional        requirements       of        §    2107      and    Federal    Rules       of

Appellate        Procedure   3    and    4.            It    reasons     that    (1)    because

Clark’s motion for an extension of time related to a future

request to file a certificate of appealability and (2) because a

future request for a certificate of appealability would relate

ultimately to a future notice of appeal, Clark’s motion must be

treated as a document giving sufficient notice of his appeal.

The majority states that it “believe[s] that there could be no



                                              13
genuine doubt that the motion for extension of time indicates

Clark’s intent to appeal.”            Ante at 8.

      The majority’s decision dramatically oversteps the bounds

of   liberally     construing     a     document   and,        in    sympathy   for     the

pleading challenges facing pro se litigants, substantially and

substantively      rewrites       it.      Under    no        fair    construction       of

Clark’s motion for an extension of time could a party or a court

conclude that the document “specifically indicate[s] [Clark’s]

intent    to   seek   appellate         review”    with       the     purpose   that     it

“provide[] sufficient notice to other parties and the courts.”

Smith v. Barry, 502 U.S. 244, 248 (1992).                           As the Smith Court

explained,     “the      notice       afforded     by     a     document,       not     the

litigant’s motivation in filing it, determines the document’s

sufficiency as a notice of appeal.”                Id. (emphasis added).                How

can a simple request for an extension to file a certificate of

appealability be fairly understood to give notice of appeal?

      The   majority’s       decision      will    cause       much    mischief,       some

unintended     but    some    quite      foreseeable          and    damaging    to     the

appellate process.        Hereafter, for example, a litigant who files

a request for an extension of time to file an appeal will, in

effect,     have   his   motion       automatically       decided        in   his     favor

without having to show any excusable neglect or good cause, as

required by 28 U.S.C. § 2107(c) and Federal Rule of Appellate



                                          14
Procedure 4(a)(5)(A), because his motion will have to be taken

as a notice of appeal.

     Because       I   would     dismiss       Clark’s    appeal       as   untimely,    I

respectfully dissent.


                                               I

     Clark       was   convicted         in    the     South    Carolina     courts     of

kidnapping and assault with intent to commit criminal sexual

conduct.          After     having       unsuccessfully         sought      direct    and

collateral review from the South Carolina courts, he filed this

pro se petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254.

     On    December       4,    2014,    the       district    court    denied   Clark’s

petition,       granting       summary    judgment      to     Larry   Cartledge,     the

Warden     at    Perry     Correctional            Institution,    where     Clark    was

housed.     It also denied Clark a certificate of appealability.

On December 18, 2014, Clark filed a document that he called a

“Motion for Extension of Time to request for a Certificate of

Appealability.”           The document requested “an additional fifteen

(15) days beyond the current due date” “in order to properly

file for a Certificate of Appealability” with respect to the

district court’s December 4 order denying his habeas petition.

He gave as his reasons the late receipt of the district court’s

December 4 order, restrictions on his access to the prison law


                                              15
library, and institutional lockdowns to which he was subjected,

and in support of his motion, he cited Federal Rule of Civil

Procedure 6(b), which addresses “Extending Time.”                                    The district

court denied Clark’s motion by order dated December 23, 2014.

Clark     nonetheless         filed     a       request        for     a        certificate    of

appealability       with      the    district        court,     which          the    court   also

denied.

     The record shows that Clark himself clearly understood that

his motion for a request for an extension of time to request a

certificate of appealability was not to serve as a notice of

appeal because he thereafter filed with the district court a

document     that        he    called       a     “Request           for       Certificate      of

Appealability” and later a document that he called a “Notice of

Appeal.”         Clark’s      notice    of        appeal       clearly          manifested     his

intent,    with    that       document,      to      appeal.         As        it   states,   “The

petitioner Keith Alan Clark hereby appeal[s] his Federal Habeas

Corpus    action    that       was    decided        by   the    Honorable            Bruce   Howe

Hendricks, U.S. District Judge.”                     His notice of appeal, however,

was filed with prison authorities on February 5, 2015, 63 days

after the district court’s order denying his petition for habeas

corpus, and therefore was untimely.

     Under       these    facts,      the       majority       concludes            that   Clark’s

request    for    an     extension      of      time      to   file        a    certificate     of

appealability was the “functional equivalent” of a notice of

                                                16
appeal and therefore that his filing of the motion conferred

jurisdiction on this court on December 18, 2014.


                                        II

       It   is   uncontroverted       that    Clark      filed    his      “notice   of

appeal” long after the 30-day time limit fixed by 28 U.S.C.

§ 2107(a) and Federal Rule of Appellate Procedure 4(a)(1)(A), a

deadline     that   the    Supreme    Court       has   repeatedly      described     as

“mandatory and jurisdictional.”              Bowles, 551 U.S. at 209-10; see

also Ray Haluch Gravel Co. v. Cent. Pension Fund, 134 S. Ct.

773, 779 (2014).           The majority nonetheless concludes that we

have    jurisdiction       to   consider     Clark’s      appeal      by    construing

Clark’s earlier motion for an extension of time to request a

certificate of appealability as the “functional equivalent” of a

notice      of   appeal.        The   majority’s        holding       stretches      the

functional equivalency test far beyond its defined bounds.

       As the Supreme Court has defined the test, “if a litigant

files papers in a fashion that is technically at variance with

the letter of a procedural rule, a court may nonetheless find

that the litigant has complied with the rule if the litigant’s

action is the functional equivalent of what the rule requires.”

Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17 (1988).

Thus, in this case, we would have to conclude, in applying the

test,    that    Clark’s    motion    for    an    extension     of   time    was    the


                                        17
functional     equivalent          of     what    Federal     Rule        of     Appellate

Procedure 3 requires for a notice of appeal.

     Federal    Rule      of   Appellate         Procedure    3   provides           that   an

appeal “may be taken only by filing a notice of appeal” and

requires that the notice of appeal “specify the party . . .

taking the appeal,” “designate the judgment [or] order . . .

being appealed,” and “name the court to which the appeal is

taken,” Fed. R. of App. P. 3(a)(1), (c)(1) (emphasis added).                                In

substance,    the   Rule       requires     that    “a     notice    of    appeal       must

specifically indicate the litigant’s intent to seek appellate

review,”     with   the    purpose         of    “ensur[ing]        that       the    filing

provides sufficient notice to other parties and the courts.”

Smith, 502 U.S. at 248.                 These requirements of Rule 3 must be

substantially satisfied by a document, and it is the “notice

afforded by [the] document, not the litigant’s motivation in

filing it, [that] determines the document’s sufficiency as a

notice of appeal.”        Id. (emphasis added).

     In this case, Clark’s motion for an extension of time to

request a certificate of appealability provides no manifestation

that it was intended to serve as a notice of appeal.                                  To the

contrary, Clark indicated in the motion that “[he], in order to

properly     file   for        a   Certificate        of     Appealability,            [was]

requesting an additional fifteen (15) days beyond the current

due date.”     And the intent communicated by the document was made

                                            18
yet clearer as it pointed to the fact that Clark needed more

time to research the certificate of appealability.                              Moreover,

the   motion    relied     on    Federal    Rule      of    Civil     Procedure     6(b),

providing for extensions of time.                  This document simply cannot

be read by any other party or a court as communicating notice of

an appeal.

      Furthermore, Clark’s motion for an extension of time was

not the product of confusion, nor was the motion ambiguous.                              His

motion for an extension of time was just that, as he explained

within the motion.          The fact that he did indeed later file a

request   for    a   certificate     of     appealability           and   a     notice    of

appeal demonstrates the unambiguous role of his motion for an

extension of time.         It is simply too creative to conclude that

Clark’s   motion     was   the    functional       equivalent        of    a    notice    of

appeal sufficient to give the parties and the court notice that,

with the filing of the motion, he was intending to appeal.

      To reach its conclusion, the majority had to effectively

rewrite   Clark’s        motion.       In       its        rewrite,       the    majority

substitutes Clark’s intent to pursue appellate review in the

future for his present intent to obtain a 15-day extension to

file a future certificate of appealability.                         This is how the

majority does it:




                                           19
(1)   Although     Clark     captioned         his   motion,        “MOTION     FOR

      EXTENSION OF TIME,” the majority takes the motion to

      be a “notice of appeal.”           Ante at 2.

(2)   When, in his motion, Clark identified himself as the

      party “bring[ing] a Motion for Extension of Time,” the

      majority     reconstructs         this     language      to     mean     that

      “Clark identifies himself as the person who intends to

      appeal.”    Ante at 6 (emphasis added).

(3)   When, in his motion, Clark wrote that, among other

      reasons given for the motion, he needed the extension

      of   time    because    he    did    not       receive    the        district

      court’s     order    denying       habeas      relief     in     a     timely

      manner, pointing out that the order was dated December

      4, 2014, but he “received service of the Order . . .

      on December 9, 2014[,] 5 days after it was served,”

      the majority reconstructs the language to mean that

      “Clark identifies . . . the order he intends to appeal

      -- the district court’s order denying his [petition

      for habeas corpus].”         Ante at 6 (emphasis added).

(4)   While     Clark   addressed       his     motion    to    the        district

      court, seeking 15 additional days within which to file

      his certificate of appealability in that court (where

      he ultimately filed his certificate of appealability),

      the majority reconstructs it to reveal “Clark’s intent

                                   20
             to appeal to [the Fourth Circuit]” because “the term

             ‘certificate of appealability’ necessarily refers to

             an appeal to the relevant court of appeals.”                         Ante at

             6-7   (emphasis        added)    (internal        quotation      marks     and

             citation omitted).

With   these   reconstructions         of    Clark’s         document,    the    majority

concludes that the motion for an extension of time satisfies

Federal Rule of Appellate Procedure 3, “suffic[ing] to put the

state on notice” of Clark’s intent to appeal, and that “there

could be no genuine doubt” about that.                   Ante at 8.

       The   majority’s       conclusion          is    based     on     an     untenable

fabrication.       Nowhere in Clark’s motion for an extension of time

does he attempt to convey notice that he is appealing.                                  His

entire text is focused on having more time to file a request for

a   certificate     of   appealability           in    the    district    court.        The

majority’s evaluation of Clark’s “circumstances,” by which it

speculates that “[t]here would be little reason for Clark to

request an extension of time to properly file a certificate of

appealability      if    he   did    not     intend     to     appeal,”    ante    at    8,

completely     disregards      the     Supreme         Court’s    instructions        that

courts “should not . . . rel[y] on [petitioner’s] reasons for

filing” because “the notice afforded by [the] document, not the

litigant’s motivation in filing it,” is what matters, Smith, 502

U.S. at 248 (emphasis added).

                                            21
     The effect of the majority’s holding is dramatic.                        Not only

does it gratuitously rewrite Clark’s motion, but, in doing so,

it   effectively      repeals      the      appellate     rules    and        statutes

governing extensions of time to file an appeal.                       For example,

the decision strips district courts of their discretion to rule

on a party’s motion for an extension of time, see Fed. R. App.

P. 4(a)(5)(A) (“The district court may extend the time to file a

notice     of    appeal”   (emphasis        added));     see   also      28     U.S.C.

§ 2107(c), and categorically relieves would-be appellants from

the requirement to “show[] excusable neglect or good cause,” see

Fed. R. App. P. 4(a)(5)(A)(ii); see also 28 U.S.C. § 2107(c).

Since every such motion for an extension of time will now be

deemed   automatically      to    be   a   notice   of   appeal,   such        factual

showings will no longer be required.

     The majority’s holding also eliminates the requirements for

giving   notice     that   an    appeal    is   being    taken,   thus    confusing

other parties who might wish to file a cross-appeal and who must

comply with administrative requirements of the rules that are

based on the date the notice of appeal was filed.                  For instance,

a party intending to file a cross-appeal must do so within 14

days after the principal appeal is filed.                  See Fed. R. App. P.

4(a)(3).        With the majority’s holding, a party will not know

whether another party’s request for an extension of time to file



                                           22
an appeal is actually an appeal and thereby might lose its right

to appeal.

       And as a corollary, the majority’s holding destroys any

clarity as to whether appellate courts have jurisdiction.                                        Cf.

Bowles, 551 U.S. at 208 (explaining that “[d]istrict courts have

limited    authority      to       grant      an     extension          of    the     30-day    time

period” governing notices of appeal and holding that the court

of    appeals    lacked    jurisdiction              over         an   appeal       because,    even

though the notice of appeal was filed within the time period

specified by the district court, that time period exceeded the

period    permitted       by       28   U.S.C.       §    2107         and    Federal    Rule     of

Appellate Procedure 4(a)(6)).

       Finally,    the     majority’s           holding            that      courts    must     read

motions    for    extensions            of    time       as       notices      of    appeal     will

interfere with principles of finality.                             It is easy to imagine a

scenario    in    which        a     party      files         a    timely      request    for     an

extension of time to note an appeal, which the district court

denies, and the 30-day time period for taking an appeal lapses

without the party having filed a notice of appeal.                                    Even if the

opposing   party    and        the      court      initially           have   notice     that    the

movant intended to file an appeal in the future, such notice

dissipates when Rule 4(a)(1)(A)’s 30-day time limit lapses and

the   opposing    party        and      the   court       rationally          assume     that    the

would-be appellant elected not to file the appeal.                                      Under the

                                                23
majority’s decision, however, the party who filed the motion for

an extension could eventually pursue the appeal long after the

30-day time period has ended, to the surprise of the opposing

party and the court, by relying on his motion for an extension

of time as his notice of appeal.                   Similar confusion would result

if   the   district       court    granted       the    appellant’s        motion    for    an

extension      of   time.         Under    the     majority’s        new    rule,    if    the

appellant failed to file his appeal within the extended time,

the resulting expectation of the opposing party and the court

that     the   appellate       court      lacked       jurisdiction        and     that    the

proceeding had ended would be in error, as the appellant could

proceed at any point simply on the basis of his earlier request

for an extension of time.

       At bottom, there is no limiting principle in the majority’s

holding.       With it, a court could even construe a petitioner’s

§ 2254      petition       for      habeas        relief       or    his        motion     for

reconsideration of an order denying habeas relief to reveal an

intent to appeal and therefore to constitute a notice of appeal

under      Rule     3,     based     on      the       logic    that        a    prisoner’s

“circumstances” often provide “little reason” not to appeal any

adverse ruling.          Ante at 8.

       Until now, we have never applied the functional equivalency

test so liberally as to eliminate the substantive requirements

of   Federal      Rule    of     Appellate       Procedure      3.         While    we    have

                                             24
permitted imperfections in the notice of appeal, we have done so

only when the document provided definite notice of the party’s

present intent to appeal.               See, e.g., Jackson v. Lightsey, 775

F.3d    170,    175-76     (4th     Cir.       2014)     (construing         a     document

purporting to be a notice of appeal as such even though it

lacked the words “Fourth Circuit”); In re Spence, 541 F.3d 538,

543 (4th Cir. 2008) (construing a document purporting to be a

notice of appeal to pertain to the district court’s final order

even   though     it     designated      only     the    district       court’s        order

denying the motion for rehearing); Dang v. C.I.R., 259 F.3d 204,

207-08 (4th Cir. 2001) (construing the appellant’s notice of

appeal to include issues not specifically designated).

       To be sure, Federal Rule of Appellate Procedure 3(c)(4)

tolerates      “informality       of    form     or    title    of     the       notice   of

appeal,” but the Rule cannot be read to “waive” the substantive

requirements of Rule 3(c), which function as a “jurisdictional

threshold.”       Torres, 487 U.S. at 314-17.                   This jurisdictional

threshold      requires    that    a    notice    of    appeal    be    sufficient         to

“ensure   that    the     filing       provides   sufficient         notice       to   other

parties   and     the    courts,”       Smith,    502    U.S.    at    248,       that    the

appellant is “taking the appeal,” Fed. R. App. P. 3(c)(1)(A)

(emphasis added).          Because Clark’s motion for an extension of

time to request a certificate of appealability does not provide

that    notice,     we     must     dismiss       this     appeal       for       lack     of

                                           25
jurisdiction because the only notice of appeal that Clark filed

was untimely.




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