                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-16105                ELEVENTH CIRCUIT
                                                             AUGUST 16, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                                CLERK

                   D. C. Docket Nos. 08-20196-CV-DLG,
                            06-20375-CR-DLG

ERIC A. KELLY,



                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                              (August 16, 2010)

Before BARKETT, HULL and FAY, Circuit Judges.

PER CURIAM:
      Eric A. Kelly, proceeding pro se, appeals from the district court’s order

denying his motion under Fed.R.Civ.P. 60(b), which sought relief from the court’s

order denying his motion to reopen the time period to file a notice of appeal from

the court’s judgment denying his motion to vacate, set aside, or correct his

sentence, under 28 U.S.C. § 2255. On appeal, Kelly argues that the district court

should have granted him relief from its order denying his motion to reopen the

time period to file a notice of appeal, because he did not receive notice of the

court’s judgment denying relief under § 2255, as required by Fed.R.Civ.P. 77(d).

In support of this argument, Kelly asserts that the magistrate judge’s “Order of

Instructions to Pro Se Litigant” included instructions that precluded him from

ascertaining the status of his § 2255 proceeding.

      In addition, Kelly requests that we expand the district court’s certificate of

appealability (“COA”) to include the following issues: (1) whether the district

court incorrectly sentenced him as an armed career criminal under the Armed

Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), thereby violating his right to

due process under the Fifth Amendment; and (2) whether trial counsel was

ineffective for failing to investigate whether any of Kelly’s previous crimes

qualified as crimes of violence under the ACCA.

      For the reasons set forth below, we affirm, and deny Kelly’s request to



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expand the district court’s COA.



                                           I.

      In January 2008, Kelly, proceeding pro se, filed a motion to vacate, set

aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. In his motion, Kelly

explained that he had received a 180-month sentence following his guilty plea to

two counts of possession of a firearm as a convicted felon, in violation of 18

U.S.C. §§ 922(g) and 924(e). Kelly asserted that he was entitled to relief under

§ 2255 because, in light of the Supreme Court’s decision in Begay v. United States,

553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), the court erroneously had

sentenced him as an armed career criminal under the ACCA. As a separate ground

for relief, Kelly asserted that counsel was ineffective for failing to investigate

adequately his criminal history, thus resulting in his erroneous sentencing as an

armed career criminal.

      The magistrate judge entered an order entitled “Initial Order of Instructions

to Pro Se Litigant.” In this order, the magistrate instructed Kelly that he should not

send any letter regarding his case to the court or clerk of court, and that any such

letter would be ignored. The magistrate also stated, however, that Kelly could “file

a motion, a memorandum, any pleading allowed by the procedural rules, or any



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document ordered by the Court.” In addition, the magistrate stated that Kelly was

not permitted to contact any judge’s office for any reason, but that “[b]rief case

status information contained on the docket sheet may be available from the [c]lerk

of [c]ourt.”

      After the parties filed subsequent pleadings, the magistrate entered a report

and recommendation, recommending that the court deny Kelly’s § 2255 motion.

On August 26, 2008, the court entered an order adopting the report and

recommendation, and denying relief under § 2255.

      Nearly one year later, on August 7, 2009, Kelly sent a letter to the clerk of

court, requesting that the court advise him of the status of his § 2255 proceeding.

On August 25, 2009, Kelly filed a “Motion to Reinstate Judgment.” In this

motion, Kelly requested that the court vacate and reenter its order denying his

§ 2255 motion, so that he could seek a COA in the matter. He asserted that he had

not received notice of the court’s order denying his § 2255 motion until August 17,

2009. Kelly contended that, in light of the court’s failure to timely serve him with

notice of the court’s order, and the meritorious nature of his Begay claim, the court

should vacate and reenter its judgment so that he timely could seek a COA. The

court entered an order denying Kelly’s motion, finding that Kelly had “fail[ed] to

demonstrate a basis upon which to vacate the judgment.”



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      Kelly next filed a motion under Fed.R.Civ.P. 60(b), asking that the court

reconsider or grant him relief from its decision to deny his motion to reinstate the

judgment. Relying on Fed.RApp.P. 4(a)(6), Kelly argued that the court possessed

authority to reopen the period within which to file a notice of appeal from its order

denying relief under § 2255. Kelly also reasserted that the clerk of court had failed

to provide him with notice of the court’s order denying his § 2255 motion, as

required by Fed.R.Civ.P. 77(d). Kelly argued that his motion to reinstate the

judgment was timely, as he had filed it within seven days of receiving actual notice

that the court had denied his § 2255 motion. On November 4, 2009, the court

summarily denied Kelly’s Rule 60(b) motion.

      Kelly filed a notice of appeal. In his notice of appeal, Kelly stated that he

appealed from the court’s “November 4, 2009 [o]rder denying him [permission] to

file an out of time appeal based on the indisputable fact that [p]etitioner never

received a copy of the [c]ourt’s [o]rder denying his [pro se] 28 U.S.C. § 2255

petition for relief.” The court construed Kelly’s notice of appeal as a motion for a

COA. The magistrate entered a report and recommendation, stating that Kelly

sought to appeal the court’s November 4, 2009 order, which denied Kelly

permission “to file an out of time appeal based upon his claim that he never

received a copy of the [c]ourt’s [o]rder denying his motion to vacate.” The



                                           5
magistrate next stated, “It is therefore recommended that the motion for [a COA]

be granted.” The court adopted the magistrate’s report and recommendation, and

granted Kelly’s motion for a COA. The court did not further specify the issue or

issues on which it granted a COA.

                                          II.

      As an initial matter, it is noted that, “[a]lthough we will not decide any issue

not specified in the COA, we will construe the issue specification in light of the

pleadings and other parts of the record.” Murray v. United States, 145 F.3d 1249,

1251 (11th Cir. 1998). In Kelly’s notice of appeal, which the court construed as a

motion for a COA, Kelly stated that the court should have reopened the time period

in which to file a notice of appeal from its order denying his § 2255 motion,

because he did not receive notice of the court’s judgment denying relief under

§ 2255. In recommending that the court grant Kelly’s motion for a COA, the

magistrate expressly noted that this was the issue that Kelly sought to raise on

appeal, and the court adopted the report and recommendation, including the

magistrate’s description of the issue.

      Accordingly, based on Kelly’s notice of appeal, the magistrate’s report and

recommendation, and the other pleadings in this case, we construe the district

court’s COA as specifying the following issue: Whether the district court erred by



                                          6
denying Kelly’s motion under Fed.R.Civ.P. 60(b), which sought reconsideration of

the court’s order denying Kelly’s “Motion to Reinstate Judgment,” construed as a

motion to reopen the time to file a notice of appeal under Fed.R.App.P. 4(a)(6).

See Murray, 145 F.3d at 1251.

                                          III.

      “We typically review a district court’s denial of a Rule 60(b) motion for an

abuse of discretion.” Farris v. United States, 333 F.3d 1211, 1216 (11th Cir.

2003). In addition, we generally review a district court’s denial of a party’s motion

to reopen the time period to file a notice of appeal, pursuant to Fed.R.App.P.

4(a)(6), for abuse of discretion. See McDaniel v. Moore, 292 F.3d 1304, 1305

(11th Cir. 2002). We review de novo, however, a district court’s interpretation of

federal procedural rules. Vencor Hosp., Inc. v. Standard Life & Accident Ins. Co.,

279 F.3d 1306, 1308 (11th Cir. 2002). We liberally construe a pro se litigant’s

pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998 ).

      Pursuant to Fed.R.Civ.P. 60(b), a party may obtain relief from a judgment by

showing: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been

satisfied or released; or (6) any other reason that justifies relief. Fed.R.Civ.P.

60(b). Under a liberal construction of Kelly’s Rule 60(b) motion, it appears that he



                                            7
based his claim for relief on grounds (1) and (6). See Tannenbaum, 148 F.3d at

1263. When considering whether a party is entitled to relief under Rule 60(b)(1),

the court conducts “an equitable inquiry based upon the particular circumstances of

the case.” Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337,

1355 (11th Cir. 2009) (quotation omitted). In order to obtain relief under Rule

60(b)(6), a party must demonstrate “exceptional circumstances,” or, in other words,

“a justification for relief so compelling that the district court [is] required to grant

[the] motion.” Rice v. Ford Motor Co., 88 F.3d 914, 919 (11th Cir. 1996)

(quotation omitted).

       A party must file a notice of appeal within 30 days after the judgment or

order being appealed is entered, or within 60 days if the government is party.

Fed.R.App.P. 4(a)(1)(A), (B); Vencor, 279 F.3d at 1309. Ordinarily, a habeas

petitioner’s failure to timely file a notice of appeal is “fatal” to his appeal,

“because the timely filing of a notice of appeal is mandatory and jurisdictional.”

Hollins v. Dep’t of Corr., 191 F.3d 1324, 1326 (11th Cir. 1999). Although

Fed.R.Civ.P. 77(d) requires the clerk of court to provide the parties with notice of

judgments and orders, “lack of notice of the entry by the clerk does not affect the

time to appeal or relieve or authorize the court to relieve a party for failure to

appeal within the time allowed, except as provided by [Fed.R.App.P. 4(a)].”



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Vencor, 279 F.3d at 1309 (citing Fed.R.Civ.P. 77(d)(2)).

       Pursuant to Fed.R.App.P. 4(a)(6), 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
              [Fed.R.Civ.P. 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 14 days after the moving party receives notice
              under [Fed.R.Civ.P. 77(d)] of the entry, whichever is earlier; and

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

Fed.R.App.P. 4(a)(6).1 Rule 4(a)(6) “balances the inequity of foreclosing appeals

by parties who do not receive actual notice of a dispositive order against the need

to protect the finality of judgments.” Vencor, 279 F.3d at 1309. A district court is

not authorized to reopen the time to file a notice of appeal based on lack of notice

when more than 180 days have passed since the entry of the judgment or order, and

“[t]o permit extensions of the time to appeal beyond the 180-day limit . . . would

effectively thwart the purpose of [Rule 4(a)(6)].” Id. at 1310-11.


       1
         At the time that Kelly filed his “Motion to Reinstate Judgment,” and his motion for relief
under Fed.R.Civ.P. 60(b), Fed.R.App.P. 4(a)(6)(B) provided that a motion to reopen the time to file
a notice of appeal must be filed within 180 days after the judgment or 7 days after the moving party
receives notice under Fed.R.Civ.P. 77(d), whichever is earlier. See Fed.R.App.P. 4(a)(6) (2005).
The fact that this rule has since been amended to extend one of the applicable time periods from 7
to 14 days does not affect this appeal. See Fed.R.App.P. 4(a)(6) (2009).

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      Under the “unique circumstances doctrine,” a party’s untimely notice of

appeal could be treated as timely if he could show that the tardiness was caused by

his reasonable reliance on a judicial action, and that the judicial action occurred

prior to the expiration of the time to file a notice of appeal. See, e.g., Vencor, 279

F.3d at 1311-12; Hollins, 191 F.3d at 1327-29. The unique circumstances doctrine,

however, would not excuse an untimely notice of appeal based on the court’s

failure to serve a party with notice of an order or judgment, as this omission,

standing alone, did not amount to the sort of judicial assurance or action

contemplated by the doctrine. Vencor, 297 F.3d at 1312-13 & n.5.

      In Bowles v. Russell, the U.S. Supreme Court stated that the “use of the

‘unique circumstances’ doctrine is illegitimate.” 551 U.S. 205, 214, 127 S.Ct.

2360, 2366, 168 L.Ed.2d 96 (2007). In Bowles, a district court had granted a

habeas petitioner’s motion to reopen the time to file a notice of appeal from the

denial of his habeas petition, pursuant to Fed.R.App.P. 4(a)(6), but gave the

petitioner 17 days in which to file a notice of appeal, instead of 14 days, as

prescribed by Rule 4(a)(6). Id. at 207, 127 S.Ct. at 2362. The petitioner filed his

notice of appeal on the 17th day, and the circuit appellate court dismissed his

appeal for lack of jurisdiction. Id. at 207-08, 127 S.Ct. at 2362-63. The Supreme

Court affirmed the circuit appellate court’s decision, holding that “the timely filing



                                           10
of a notice of appeal in a civil case is a jurisdictional requirement,” and that a court

“has no authority to create equitable exceptions to jurisdictional requirements.” Id.

at 214, 127 S.Ct. at 2366 . In addition, the Supreme Court rejected the petitioner’s

argument that the unique circumstances doctrine excused his failure to file a notice

of appeal within Rule 4(a)(6)’s 14-day period. Id. at 213-14, 127 S.Ct. at 2366.

      Here, the court did not abuse its discretion by denying Kelly’s Rule 60(b)

motion for relief from its judgment denying his motion to reopen the time period to

file a notice of appeal. See Farris, 333 F.3d at 1216. Rule 4(a)(6) did not provide

the district court with authority to grant Kelly’s motion to extend the time period to

file a notice of appeal, because Kelly failed to file this motion within 180 days of

the court entering its order denying relief under § 2255. See Fed.R.App.4(a)(6);

Vencor, 279 F.3d at 1310-11.

      Under a liberal construction of Kelly’s initial brief on appeal, however, he

also argues that his failure to file a timely notice of appeal from the judgment

denying his § 2255 motion should be excused under the unique circumstances

doctrine, because the court did not provide him with the notice of the entry of the

judgment. Although the Supreme Court’s decision in Bowles addressed a factual

situation that is distinguishable from the present case, its holding—that a court

lacks authority to grant equitable exceptions to Rule 4(a)’s jurisdictional



                                           11
requirements—precludes Kelly’s argument that the court should have applied the

unique circumstances doctrine to permit him to file an otherwise untimely notice of

appeal. See Bowles, 551 U.S. at 214, 127 S.Ct. at 2366.

      Moreover, even in the absence of the Bowles decision, Kelly could not

demonstrate that the unique circumstances doctrine would excuse his failure to file

a timely notice of appeal. See Vencor, 279 F.3d at 1311-12. While Kelly contends

that certain statements in the magistrate’s “Initial Order of Instructions to Pro Se

Litigant,” precluded him from ascertaining the status of his § 2255 proceeding, this

contention lacks merit. The magistrate’s order merely informed Kelly that the

clerk of court could provide him with case-status information, and instructed him

that his communications with the court should be in the form of motions and

pleadings. At best, Kelly has demonstrated only that the clerk did not provide him

with notice of the court’s judgment, as required by Fed.R.Civ.P. 77(d), and this

showing, without more, would be insufficient to warrant relief under the unique

circumstances doctrine. See Vencor, 279 F.3d at 1312-13 & n.5.

      Accordingly, the argument that Kelly raised in his Rule 60(b) motion—that

he was entitled to relief because the court did not provide him with notice of the

judgment denying relief under § 2255—lacked merit. Moreover, although Kelly

alleged that surprise or excusable neglect excused his failure to file a timely notice



                                          12
of appeal from the denial of his § 2255 motion, he did not allege surprise or

excusable neglect in connection with the judgment from which he sought

relief—the court’s order denying his motion to reopen the appeal period. See

Fed.R.Civ.P. 60(b)(1). Accordingly, the court did not abuse its discretion by

denying Kelly’s motion under Rule 60(b)(1) or (6), and we affirm as to this issue.

See Fed.R.Civ.P. 60(b)(1), (6); Farris, 333 F.3d at 1216. Rice, 88 F.3d at 919.

                                          IV.

      We do not consider issues that are not certified for appellate review in the

COA. See Murray, 145 F.3d at 1251. In Jones v. United States, we noted that,

when a district court grants a COA on some, but not all, issues raised in a § 2255

motion, a movant may seek a broader COA by “explicit[ly] request[ing]” that we

consider an uncertified issue. 224 F.3d 1251, 1255-56 (11th Cir. 2000). A

movant’s request to expand the COA “must be filed promptly, well before the

opening brief is due,” and arguments in the brief addressing issues outside the

COA “simply will not be reviewed.” Tompkins v. Moore, 193 F.3d 1327, 1332

(11th Cir.1999).

      We deny Kelly’s request that we expand the district court’s COA, because

Kelly failed to make this request before he filed his initial brief on appeal. See

Tompkins, 193 F.3d at 1332. Moreover, as discussed above, even if Kelly timely



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had filed a motion to expand the district court’s COA, we would lack jurisdiction

to consider Kelly’s substantive arguments regarding the merits of his § 2255

motion, as he failed to timely file a notice of appeal from the court’s order denying

the motion.

      AFFIRMED.




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