In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2304

United States of America,

Plaintiff-Appellee,

v.

Steven Hirsch,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:96CR40094-002--J. Phil Gilbert, Chief Judge.


Submitted October 1, 1999--Decided March 23,
2000



  Before Easterbrook, Ripple, and Kanne,
Circuit Judges.

  Easterbrook, Circuit Judge. Following a
guilty plea to drug-related crimes,
Steven Hirsch was sentenced to 157
months’ imprisonment. The sentence was
pronounced on January 29, 1999, and
docketed on February 3, 1999; any appeal
was due by February 16. Fed. R. App. P.
4(b). (February 13 was a Saturday, and
Monday, February 15, was a holiday.) A
notice of appeal was filed on May 21,
1999, more than three months late.

  Counsel’s explanation for this delay, if
true, is shocking. After imposing
sentence, a federal judge must inform the
defendant of his right to appeal and must
offer an opportunity to have the clerk of
court file a notice of appeal on
defendant’s behalf. Fed. R. Crim. P.
32(c)(5). Hirsch’s lawyer has stated
that, when asked whether the clerk should
file an appeal on his behalf, Hirsch
answered yes. But the clerk did nothing,
and by the time counsel realized this it
was too late.

  This is shocking for at least two
reasons. One is the clerk’s failure to
perform a ministerial act whose omission
could have serious adverse consequences
for a criminal defendant. The other is
counsel’s failure to ensure that a notice
of appeal was filed. Defendants have 10
days to appeal, with an extension to 40
days available for "excusable neglect or
good cause". Fed. R. App. P. 4(b)(4). The
clerk’s failure would have been "good
cause" for counsel to file a belated
appeal, so all counsel had to do was
check the docket any time within 40 days-
-but Hirsch’s lawyer did not take that
simple precaution. The absence of a
docketing notice from this court would
have put a prudent lawyer on guard. Both
the Rules of Appellate Procedure and the
Circuit Rules impose duties on counsel
that begin with the notice of appeal. For
example, the appellant’s lawyer must file
a docketing statement within seven days
after the notice of appeal. Circuit Rule
3(c)(1). An appellant must order any
relevant transcript within 10 days of the
notice of appeal. Fed. R. App. P.
10(b)(1). In this circuit, the
appellant’s brief is due 40 days after
the appeal is docketed, Circuit Rule
31(a), so counsel must ascertain the
docketing date. Had Hirsch’s lawyer taken
any steps to comply with these rules, he
would have learned that no notice of
appeal had been filed. But for
approximately 100 days after Hirsch’s
sentencing, his lawyer did nothing.

  Not until May 20, 1999, did Hirsch’s
lawyer (Douglas A. Forsyth, of St. Louis,
Missouri) bestir himself on behalf of his
client. On May 20 he filed in the
district court a motion for permission to
take an untimely appeal; the next day
Forsyth filed a notice of appeal. On June
11 the district judge entered an order
granting Forsyth’s motion and stating
that "the May 21, 1999, Notice of Appeal
is deemed timely." That decision is
ineffectual. Appellate Rule 4(b)(4)
provides that a district court may
"extend the time to file a notice of
appeal for a period not to exceed 30 days
from the expiration of the time otherwise
prescribed by this Rule 4(b)." Rule
26(b)(1) adds that a district court lacks
power to extend the time for a notice of
appeal, except to the extent provided in
Rule 4. Thus the maximum lawful extension
would have been to March 15, 1999, a date
long gone when Forsyth asked for extra
time. (The outer limit is March 15,
rather than March 18, because the extra
days added to an original period that
ends on a weekend or holiday are not
tacked onto the extension period.)

  When purporting to grant Forsyth
additional time to file a notice of
appeal, the district court did not make
findings of fact concerning Forsyth’s
assertion that Hirsch asked the clerk to
file a notice of appeal on his behalf. If
such a request was made, then the
district court needs to change its
procedures to ensure compliance with Rule
32(c)(5). Failure to file a notice of
appeal, after the defendant so requests
in open court, is rare and may be unique;
we have been unable to find any other
case in which judges have had to ponder
how to proceed when the clerk does not
carry out that mechanical step. One
possibility would be to declare that what
should have been done will be treated as
done; then we would proceed as if a
notice of appeal had been filed on
January 29, 1999. That approach would
protect defendants from bureaucratic
errors, but it could not be reconciled
with the Rules of Appellate Procedure,
which require an actual notice of appeal
rather than a virtual one, or with the
principle that a timely notice of appeal
is essential to appellate jurisdiction.
Browder v. Director, Department of
Corrections, 434 U.S. 257, 264 (1978).
Treating as done whatever should have
been done would demolish the Rules’
timetables. It would, for example, treat
a client’s request to his lawyer to file
a notice of appeal as getting the appeal
under way, whether the lawyer filed the
notice or not. Even limiting the approach
to public officials would require many
rules and doctrines to be rewritten.
Consider, for example, Fed. R. Crim. P.
29(c), which limits to seven days the
time a defendant has to file a motion for
acquittal (and also limits the period
within which the judge may extend that
time). Carlisle v. United States, 517
U.S. 416 (1996), holds that the court
lacks authority to grant a motion filed
one day late, even on the assumption that
it should have been filed earlier and
that the delay did not cause prejudice. A
principle that the court will treat a
motion (or notice of appeal) as filed
when it should have been filed would
require a different outcome in Carlisle
and many similar cases. Even the "unique
circumstances doctrine," an approach that
treats some steps in the appellate
process as if they had been done on time,
applies only when a court expressly
assures counsel or a litigant that a step
has been taken correctly, Osterneck v.
Ernst & Whinney, 489 U.S. 169, 178-79
(1989), and no express assurance is
evident here.

  Unsettling as it is to disadvantage
Hirsch because of what may have been a
clerical error, we have no choice but to
dismiss this appeal. But just as in
United States v. Marbley, 81 F.3d 51 (7th
Cir. 1996), dismissal does not bring
proceedings to a close; quite the
contrary. Strict enforcement of a rule
meant to expedite appellate resolution
will breed delay, for Hirsch is not out
of options. He may now file a motion
under 28 U.S.C. sec.2255, contending that
Forsyth’s failure to ensure that the
clerk followed through deprived Hirsch of
the assistance of counsel guaranteed by
the sixth amendment. See Roe v. Flores-
Ortega, 68 U.S.L.W. 4132 (U.S. Feb. 23,
2000); United States v. Nagib, 56 F.3d
798 (7th Cir. 1995); Castellanos v.
United States, 26 F.3d 717 (7th Cir.
1994). If the district court finds that
Forsyth was asleep on the job, then the
court must vacate the judgment and
reimpose the sentence to permit an
appeal.

  Of course, the judge cannot overlook the
possibility that Hirsch did not make a
timely request for an appeal on his
behalf. If he did not make a request in
open court, or to counsel within 10 days,
then relief is not available under
sec.2255. See United States v. Nagib, 44
F.3d 619 (7th Cir. 1995); United States
v. Mosley, 967 F.2d 242 (7th Cir. 1992).

  The transcript of the sentencing
proceedings, which was prepared at our
request, does not jibe with
Forsyth’srepresentations to the district
court (or to us). The district judge
informed Hirsch: "If you so request, a
notice of appeal will be docketed by the
clerk at this time. Do you understand
that?" Hirsch answered "yes" but did not
go on to make the request. If the
transcript is in error and Hirsch did
make a timely request in open court, or
if he asked Forsyth within 10 days to
file an appeal, then Hirsch has received
ineffective assistance of counsel. But if
there was no request within 10 days in or
out of court, then Hirsch cannot change
his mind later and blame his lawyer. See
Flores-Ortega, 68 U.S.L.W. at 4133-35.

  We observed in Marbley that this multi-
step process poorly serves the interests
of both defendants and the judicial
system. We are sending this opinion to
the Judicial Conference’s Standing
Committee on Rules of Practice and
Procedure so that the bodies charged with
proposing changes to the federal rules
may consider whether it would be prudent
to amend either Criminal Rule 32(c)(5) or
Appellate Rule 4(b)(4) to provide for the
possibility that the clerk will fail to
comply with a request to file a notice of
appeal. Perhaps it would be beneficial to
amend Appellate Rule 4(b)(4) to provide
that an appeal is timely if, within 10
days after being sentenced, a criminal
defendant informs either court or counsel
of his desire to appeal. Our function
today, however, is not to draft new rules
but to implement the rules as they exist.
Under those rules, Hirsch’s appeal must
be dismissed for want of jurisdiction.
