             Case: 17-11992      Date Filed: 06/12/2019    Page: 1 of 10


                                                               [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 17-11992
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 6:15-cv-00239-GKS-DCI

BRIAN PHILLIPS,

                                                                 Petitioner-Appellant,

                                        versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                             Respondents-Appellees.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                   (June 12, 2019)

Before MARCUS, ROSENBAUM and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Brian Phillips, a Florida prisoner proceeding pro se, appeals the district court’s

denial of his motion to reopen the time to file an appeal under Federal Rule of

Appellate Procedure 4(a)(6), in his habeas corpus action pursuant to 28 U.S.C. §
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2254. On appeal, Phillips argues that: (1) the district court abused its discretion in

denying his Rule 4(a)(6) motion as untimely, because his receipt of the district

court’s December 12, 2016 order -- wherein the court mentioned that his case had

previously been dismissed -- did not constitute formal notice of its order denying his

second amended § 2254 petition, and, consequently, his Rule 4(a)(6) was not due

within 14 days of his receipt of the district court’s December 12, 2016 order but

instead was due within 180 days of the district court’s September 12, 2016 order;

and (2) the district court erred in denying his second amended § 2254 petition, since

the crimes that the State charged and convicted him of were barred by the relevant

statute of limitations. After careful review, we reverse and remand.

      The relevant background is this. In April 2015, Phillips filed the instant pro

se § 2254 petition, as twice amended, which the district court denied on September

12, 2016 and entered a formal judgment of dismissal the next day. Phillips did not

appeal that denial, but on December 1, 2016, he submitted to prison authorities for

mailing a motion for leave to amend his second amended § 2254 petition, which the

district court denied on December 12, 2016. That order said only: “The cause before

the Court is Petitioner’s Motion for Leave to Amend (Doc. 25). Upon consideration,

the motion is DENIED. This case was dismissed on September 12, 2016.”

      Once again, Phillips did not immediately appeal. But on January 12, 2017, he

submitted to prison authorities for mailing a “Motion to Rescind Order Dismissing


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the Cause on September 12, 2016 or to Reopen this Cause,” wherein he urged the

district court to rescind its September 12, 2016 order denying his second amended §

2254 petition, or, alternatively, to reopen his case, so that he could appeal the denial

of his second amended § 2254 petition. He explained that he had not been notified

of the district court’s September 12, 2016 denial order and only learned of that order

when he received the district court’s December 12, 2016 order denying his motion

to amend or supplement his second amended § 2254 petition, and that -- as the parties

in this appeal agree -- he did not receive any legal mail in either September or

October 2016. The district court denied that motion.

      On February 10, 2017, Phillips submitted to prison authorities for mailing the

instant motion to reopen the time to file an appeal under Federal Rule of Appellate

Procedure 4(a)(6). He argued that, because he did not receive proper notice of the

district court’s September 12, 2016 order denying his second amended § 2254

petition, his Rule 4(a)(6) motion was timely because he filed it within 180 days after

the court issued its order. The district court denied his Rule 4(a)(6) motion as

untimely, reasoning that he failed to file it within 14 days of his receipt of its

December 12, 2016 order denying his motion to amend his second amended § 2254

petition, which gave him sufficient notice that his second amended § 2254 petition

had been denied on September 12, 2016. Phillips timely filed a notice of appeal

(“NOA”), designating only the order denying his Rule 4(a)(6) motion for appeal.


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      We review the district court’s denial of a motion under Federal Rule of

Appellate Procedure 4(a)(6) for abuse of discretion. McDaniel v. Moore, 292 F.3d

1304, 1305 (11th Cir. 2002). We will not reverse a decision of a district court unless

we determine that the district court made a clear error in judgment or applied an

incorrect legal standard. Weatherly v. Ala. State. Univ., 728 F.3d 1263, 1270 (11th

Cir. 2013). The Supreme Court has made clear that “[a] district court by definition

abuses its discretion when it makes an error of law.” Koon v. United States, 518

U.S. 81, 100 (1996).

      Under the Federal Rules of Appellate Procedure, a notice of appeal in a civil

case “must be filed with the district clerk within 30 days after entry of the judgment

or order appealed from.”       Fed. R. App. P. 4(a)(1)(A).       Generally, a habeas

petitioner’s failure to file a timely NOA is fatal to his appeal, “because the timely

filing of a [NOA] is mandatory and jurisdictional.” Hollins v. Dep’t of Corr., 191

F.3d 1324, 1326 (11th Cir. 1999) (quotations omitted). However, the rules provide

that a district court may reopen the time to file an appeal for a period of 14 days if:

(1) the court finds that the moving party did not receive notice of the entry of the

judgment or order being appealed within 21 days after its entry; (2) the motion is

filed within 180 days after the order was entered or within 14 days after the moving

party received notice of the entry, whichever is earlier; and (3) the court finds that

no party would be prejudiced. Fed. R. App. P. 4(a)(6).


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      In 2002, a panel of this Court held that a party receives “notice of the entry”

of an order when he receives notice that the order was entered, and a receipt of a

copy of the order is not required. McDaniel, 292 F.3d at 1306. But, thereafter, the

relevant advisory committee notes explained that Rule 4(a)(6) was amended in 2005

to clarify that only a formal notice of the entry of a judgment or order, as prescribed

by Federal Rule of Civil Procedure 77(d), constitutes proper “notice of the entry” of

a judgment. Fed. R. App. P. 4(a)(6), Advisory Committee note to 2005 amend. The

note explains:

      . . . . As amended, [subdivision (a)(6)(A)] will preclude a party from
      moving to reopen the time to appeal a judgment or order only if the
      party receives (within 21 days) formal notice of the entry of that
      judgment or order under Civil Rule 77(d). No other type of notice will
      preclude a party . . . .

      . . . . Under the 1998 amendment, some type of notice, in addition to
      Civil Rule 77(d) notice [or notice from the district court itself],
      precluded a party. But the text of the amended rule did not make clear
      what type of notice qualified. This was an invitation for litigation,
      confusion, and possible circuit splits . . . .

      To avoid such problems, former subdivision (a)(6)(B) -- new
      subdivision (a)(6)(A) -- has been amended to restore its pre-1998
      simplicity. Under new subdivision (a)(6)(A), if the court finds that the
      moving party was not notified under Civil Rule 77(d) of the entry of the
      judgment or order that the party seeks to appeal within 21 days after
      that judgment or order was entered, then the court is authorized to
      reopen the time to appeal (if all of the other requirements of subdivision
      (a)(6) are met). Because Civil Rule 77(d) requires that notice of the
      entry of a judgment or order be formally served under Civil Rule 5(b),
      any notice that is not so served will not operate to preclude the
      reopening of the time to appeal under new subdivision (a)(6)(A).


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      ....

      . . . . [New subdivision (a)(6)(B)] now makes clear that only formal
      notice of the entry of a judgment or order under Civil Rule 77(d) will
      trigger the [14]-day period to move to reopen the time to appeal . . . .

      ....

      Using Civil Rule 77(d) notice to trigger the [14]-day period will not
      unduly delay appellate proceedings. Rule 4(a)(6) applies to only a
      small number of cases -- cases in which a party was not notified of a
      judgment or order by either the clerk or another party within 21 days
      after entry . . . .

Id. (emphases added). The interpretations in the advisory committee notes, while

not binding, “are nearly universally accorded great weight in interpreting federal

rules.” Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132 (11th Cir. 2005).

And, indeed, Rule 4(a)(6) now specifies that the district court may reopen the time

to appeal when, among other things, “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.” Fed. R. App.

P. 4(a)(6)(A). It then provides that the 14-day clock to file an appeal may begin to

run “within 14 days after the moving party receives notice under [Rule 77(d)] of the

entry [of the judgment or order sought to be appealed] . . . .” Id. 4(a)(6)(B).

      Federal Rule of Civil Procedure 77(d), in turn, provides that, “[i]mmediately

after entering an order or judgment, the clerk must serve notice of the entry, as

provided in Rule 5(b), on each party . . . . The clerk must record the service on the


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docket. A party also may serve notice of the entry as provided in Rule 5(b).” Fed.

R. Civ. P. 77(d). And under Rule 5(b), notice of entry is served by: (1) hand

delivering it; (2) leaving it at the party’s office or dwelling; (3) mailing it to the

party’s last known address; (4) leaving it with the court clerk if the party’s address

is unknown; (5) sending it by electronic means if the party has consented to such

method of notice in writing; or (6) delivering it by other means consented to by the

party. Id. 5(b). Further, Federal Rule of Civil Procedure 79 provides each “entry”

on a civil docket “must briefly show the nature of the paper filed or writ issued, the

substance of each proof of service or other return, and the substance and date of entry

of each order and judgment.” Id. 79(a)(3).

      In this case, the district court abused its discretion in denying Phillips’s Rule

4(a)(6) motion as untimely. Even if, as the district court concluded, Phillips became

aware that the court had entered a September 12, 2016 order denying his second

amended § 2254 petition when he received its December 12, 2016 order, which

denied his motion to amend or supplement his second amended § 2254 petition, that

does not mean he received formal notice of entry of the September 12 order. The

rules contemplate that notice of entry requires the district court clerk to have served

Phillips with notice of the entry of the order immediately after it was entered, see

Fed. R. App. P. 4(a)(6); id., Advisory Committee note to 2005 amend.; Fed. R. Civ.

P. 77(d), and all parties agree that Phillips did not receive any legal mail in either


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September or October 2016. Thus, Phillips’ case falls into that “small number of

cases” envisioned by the rule -- “cases in which a party was not notified of a

judgment or order by either the clerk or another party within 21 days after entry.”

Fed. R. App. P. 4(a)(6), Advisory Committee note to 2005 amend.

      Nor can we say the December 12 order constituted “notice of the entry” of the

district court’s September 12 order. The December 12 order said only: “The cause

before the Court is Petitioner’s Motion for Leave to Amend (Doc. 25). Upon

consideration, the motion is DENIED. This case was dismissed on September 12,

2016.” Though the rules do not define exactly what “notice of entry of a judgment

or order” entails, Rule 79 requires an “entry” to “show the nature of the paper filed

or writ issued, the substance of each proof of service or other return, and the

substance and date of entry of each order and judgment.” Fed. R. Civ. P. 79(a). The

advisory committee notes to Rule 4(a) make clear that notice of entry must come

from the district court clerk or a party, and expressly rejected the provision in the

1998 amendments allowing for notice to come from the district court itself. Fed. R.

App. P. 4(a)(6), Advisory Committee note to 2005 amend. Further, the advisory

committee notes emphasize that only “formal” notice of the entry precludes a party

from moving to reopen the time to appeal. Id.

      Notably, the December 12 order did not include a copy of the September 12

order. Nor, moreover, did it include the entry corresponding to the September 12


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order that appeared on the docket, nor the necessary contents of the entry, including

the nature of the pleading (a second amended petition for writ of habeas corpus),

information concerning proof of service, or the date of entry of the judgment

associated with that order (September 13, 2016). Further, the reference to the

September 12 order came from the district court, not the clerk. On this record, we

think that an ancillary order from the district court that mentions a prior ruling does

not constitute formal “notice under Federal Rule of Civil Procedure 77(d) of the

entry of the judgment or order sought to be appealed.” Fed. R. App. P. 4(a)(6).

According to the committee notes, the thrust of the 2005 amendments was to

promote “simplicity” and to avoid “litigation, confusion, and possible circuit splits”

over the type of notice given. Fed. R. App. P. 4(a)(6), Advisory Committee note to

2005 amend. Requiring the clerk to properly serve Phillips with formal notice of the

entry of the district court order he seeks to appeal -- which, at a minimum, would

include the information contained in a docket entry -- is a clear rule that satisfies the

spirit of the relevant amendments, and gives Phillips the information he needs to

appeal the order in question. See Horenkamp, 402 F.3d at 1132 (noting that we give

great weight to the interpretations in the advisory committee notes).

      In short, the district court legally erred in concluding that the service of its

December 12 order was sufficient to start the 14-day period in which Phillips had to

move to reopen time to appeal under Rule 4(a)(6). Instead, Phillips had 180 days


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from the date the district court entered its order denying his second amended § 2254

petition to file his Rule 4(a)(6) motion, and he filed his motion within that timeframe.

See Fed. R. App. P. 4(a)(6). Because Phillips’ motion to reopen was not untimely

under the rules, we reverse the district court’s denial of Phillips’s Rule 4(a)(6)

motion and remand for further proceedings.

      REVERSED AND REMANDED.




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