              Case: 14-11035    Date Filed: 11/18/2015   Page: 1 of 9


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-11035
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 5:09-cv-00155-AKK-TMP



JEFF JONES,

                                                              Petitioner-Appellant,

                                      versus

COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF ALABAMA,

                                                          Respondents-Appellees.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                         ________________________

                               (November 18, 2015)

Before HULL, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Jeff Jones, an Alabama state prisoner, pro se appeals the district court’s

denial of his motion to reopen the time to file a notice of appeal from the denial of

his 28 U.S.C. § 2254 habeas corpus petition. After review, we affirm, but further

direct the district court clerk to docket Jones’s December 21, 2012 motion for a

certificate of appealability as a notice of appeal.

                            I. BACKGROUND FACTS

A.    Section 2254 Petition, Denial, and Certificate of Appealability

      On January 26, 2009, Jones filed a counseled petition for writ of habeas

corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutional validity of his

2001 Alabama murder conviction. In an October 22, 2012 order, the district court

denied Jones’s § 2254 petition and dismissed the action with prejudice. The

district court did not enter a separate final judgment.

      On December 21, 2012, Jones filed a counseled motion for a Certificate of

Appealability (“COA”) in the district court. In that motion, Jones’s counsel

requested a COA “in order to pursue [an] appeal of the [d]istrict [c]ourt’s dismissal

of his 28 U.S.C. §2254 petition.” In an August 29, 2013 order, the district court

denied the COA motion on the grounds that the court did not believe that a

reasonable jurist could come to a different conclusion regarding the constitutional

claims in Jones’s § 2254 petition.




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B.    Motion to Reopen the Time to File a Notice of Appeal

      On December 16, 2013, in the district court, Jones filed a pro se motion to

reopen the time to file a notice of appeal under Rule 4(a)(6) of the Federal Rules of

Appellate Procedure, or, in the alternative, a motion “for an order granting [Jones]

an out-of-time appeal” under Rule 60(b) of the Federal Rules of Civil Procedure.

Jones averred that his counsel never informed him that his § 2254 petition had

been denied, and that he did not discover this information until July 25, 2013.

      On February 14, 2014, the district court denied Jones’s pro se Rule 4(a)(6)

motion to reopen the time to file a notice of appeal for failure to satisfy the

preconditions and timing requirements of Rule 4(a)(6). The district court first

noted that it entered an order denying Jones’s § 2254 petition on October 22, 2012,

but did not enter a separate judgment denying relief as is required by Rule 58.

Accordingly, the October 22, 2012 order denying Jones’s § 2254 petition was not

deemed “entered” for purposes of Rule 4(a)(6) and (7) until 150 days after it was

entered on the court’s civil docket, which, in this case, was March 21, 2013.

      With the March 21, 2013 date in mind, the district court found that Jones did

not meet the requirements of Rule 4(a)(6). First, Jones could not meet the first

condition of Rule 4(a)(6), which required Jones to have not received notice of the

October 22, 2012 order denying his § 2254 petition within 21 days of its entry, as

his counsel received electronic notice of that order on the day it was entered on the


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civil docket. Second, even if electronic notice to Jones’s counsel was inadequate

for the purposes of satisfying Rule 4(a)(6)(A), Jones admitted that he became

aware of the October 22, 2012 order denying his § 2254 petition on July 25, 2013.

Jones, however, did not file his Rule 4(a)(6) motion to reopen within 14 days of

discovering the existence of the October 22, 2012 order denying his § 2254

petition, as is required by Rule 4(a)(6)(B). Finally, even if Jones had not received

proper notice of the existence of the October 22, 2012 order denying his § 2254

petition on July 25, 2013, under Rule 4(a)(6)(B), any Rule 4(a)(6) motion to

reopen would have been due 180 days after the March 21, 2013 entry of final

judgment, which was September 17, 2013. Jones, however, did not file his Rule

4(a)(6) motion to reopen until December 16, 2013.

      The district court further found no reason to treat Jones’s motion to reopen

as a motion for relief under Rule 60(b) of the Federal Rules of Civil Procedure, as

Jones did not allege any bases for granting relief under that rule.

      Jones timely appealed the district court’s February 14, 2014 order.

                                 II. DISCUSSION

A.    Standard of Review

      We review a district court’s denial of a party’s Rule 4(a)(6) motion or other

type of motion to reopen the time to file a notice of appeal for abuse of discretion.

McDaniel v. Moore, 292 F.3d 1304, 1305 (11th Cir. 2002). We may affirm on any


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ground that finds support in the record. Thomas v. Cooper Lighting, 506 F.3d

1361, 1364 (11th Cir. 2007).

B.    Jones’s Motion to Reopen the Time to File a Notice of Appeal Failed to
      Meet the Timing Requirements of Rule 4(a)(6)

      In civil cases, Fed. R. App. P. 4(a)(6) provides that a party who does not

receive notice of the entry of an order or judgment within 21 days of its entry may,

by filing a motion within 180 days of the entry of the order or judgment or within

14 days of receipt of such notice, whichever is earlier, request the district court to

reopen the time for appeal for a period of 14 days. Fed. R. App. P. 4(a)(6).

      In calculating the time from entry of the judgment, we also must consider

Rule 58 of the Federal Rules of Civil Procedure, which provides that “[e]very

judgment . . . must be set out in a separate document.” Fed. R. Civ. P. 58(a). This

rule requires that a district court enter its judgment in a separate document when

denying a § 2254 petition for habeas corpus. See Jackson v. Crosby, 375 F.3d

1291, 1293 n.5 (11th Cir. 2004). When a separate document is required by Rule

58, a judgment or order is deemed entered for purposes of Fed. R. App. P. 4(a) on

the date when the judgment or order is set forth on a separate document (which

never occurred here), or on the date when 150 days have run from entry of the

order on the civil docket, whichever is earlier. Fed. R. App. P. 4(a)(7)(A).

      Here, even if Jones did not receive notice of the October 22, 2012 denial of

his § 2254 petition within 21 days of its entry, and even if we use the later dates for
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entry of the judgment, Jones’s motion to reopen the time to file a notice of appeal

did not meet the timing requirements of Rule 4(a)(6). The district court’s October

22, 2012 denial of Jones’s § 2254 petition required the entry of final judgment in a

separate document. See Jackson, 375 F.3d at 1293 n.5. The district court,

however, did not file an entry of final judgment in a separate document.

Accordingly, final judgment was entered, by default, on March 21, 2013, which

was 150 days from the entry of the October 22, 2012 order on the civil docket. See

Fed. R. App. P. 4(a)(7)(A).

       Jones then had until September 17, 2013—180 days from the March 21,

2013 entry of judgment—to file a motion to reopen the time to file a notice of

appeal. Fed. R. App. P. 4(a)(6)(B). Jones, however, did not file his Rule 4(a)(6)

motion to reopen the time to file a notice of appeal until December 16, 2013—

approximately three months late. Accordingly, the district court did not abuse its

discretion by denying Jones’s motion to reopen the time to file a notice of appeal. 1

The case, however, does not end here.




       1
         The district court also correctly denied Jones’s alternative Rule 60(b) motion. See
Vencor Hosps. v. Standard Life & Accident Ins. Co., 279 F.3d 1306, 1310-11 (11th Cir. 2002)
(holding that Rule 4(a)(6) “provides the exclusive method for extending a party’s time to appeal
for failure to receive actual notice that a judgment or order has been entered,” and noting that
Fed. R. Civ. P. 60(b) cannot be used to circumvent Rule 4(a)(6)’s 180-day limitation).
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C.     Jones’s Motion for a COA Constitutes a Timely Notice of Appeal

       This Court has long held that an application for a certificate of appealability

will be treated as a notice of appeal where no formal notice has been filed. See

Thames v. Dugger, 848 F.2d 149, 150 (11th Cir. 1988) (construing application for

certificate of probable cause as a notice of appeal). Specifically, where a party

files an application for a certificate of appealability in the district court and “clearly

evinces an intent to appeal,” we will construe such a motion as a notice of appeal.

See id.

       Here, Jones’s December 21, 2012 motion for a COA expressly evinced an

intent to appeal the October 22, 2012 denial of his § 2254 petition and, therefore,

we construe Jones’s December 21, 2012 motion for a COA as a notice of appeal.

See id.

       The construed notice of appeal was timely filed for the following reasons.

As discussed above, the district court never entered a separate judgment as

required by Rule 58.2 Thus, as noted above, final judgment was entered against

Jones by default on March 21, 2013—150 days after the district court’s October

       2
         Generally, a notice of appeal in a civil case must be filed within 30 days after the
judgment or order appealed from is entered. Fed. R. App. P. 4(a)(1)(A). However, the time to
appeal does not begin to run until a separate judgment is entered pursuant to Rule 58 of the
Federal Rules of Civil Procedure. Reynolds v. Golden Corral Corp., 213 F.3d 1344, 1346 (11th
Cir. 2000). Moreover, the failure to set forth a judgment or order on a separate document does
not affect the validity of a notice of appeal from that order or judgment. Fed. R. App. P.
4(a)(7)(B); see Am. Disability Ass’n v. Chmielarz, 289 F.3d 1315, 1318 n.1 (11th Cir. 2002).


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22, 2012 order denying Jones’s § 2254 petition. See Fed. R. App. P. 4(a)(7)(A).

Because Jones filed his construed notice of appeal on December 21, 2012, well

before final judgment was entered by default, it was timely to appeal from the

district court’s October 22, 2012 order denying his § 2254 petition. Fed. R. App.

P. 4(a)(7)(A-B); Reynolds, 213 F.3d at 1346; Chmielarz, 289 F.3d at 1318 n.1.

      Accordingly, the district court clerk should docket Jones’s December 21,

2012 motion for a certificate of appealability also as a construed notice of appeal.

Even though Jones’s construed notice of appeal from the district court’s denial of

his § 2254 petition is timely filed, a petitioner’s appeal in a § 2254 case may not be

taken unless a COA issues. 28 U.S.C. § 2253. Because his motion for a COA

filed in the district court has already been denied, Jones must apply for a COA in

this Court and have it granted before we can review the merits of the district

court’s denial of his § 2254 petition. Id.

                                III. CONCLUSION

      In light of the foregoing, we affirm the district court’s February 14, 2014

order denying Jones’s motion to reopen the time to file a notice of appeal and

alternative Rule 60(b) motion. However, because Jones’s COA motion expressly

evinced an intent to appeal and the district court never entered its judgment in a

separate document from the October 22, 2012 order, we further order the district

court clerk to docket Jones’s December 21, 2012 motion for a COA as also a


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construed notice of appeal from the district court’s October 22, 2012 order denying

Jones’s § 2254 petition.

      AFFIRMED.




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