                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-9-2003

USA v. Fiorelli
Precedential or Non-Precedential: Precedential

Docket No. 01-2951




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                         PRECEDENTIAL

                                       Filed July 9, 2003

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                   No. 01-2951


          UNITED STATES OF AMERICA
                        v.
                JOSEPH FIORELLI,
                             Appellant

  On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
          (D.C. Criminal No. 94-cr-00146)
    District Judge: Hon. Clarence C. Newcomer

               Argued April 1, 2003
BEFORE: MCKEE, SMITH and COWEN, Circuit Judges

               (Filed: July 9, 2003)

                 Salvatore C. Adamo, Esq. (Argued)
                 Two Penn Center Plaza
                 Suite 200
                 Philadelphia, PA 19102
                   Counsel for Appellant
                 Ronald G. Cole, Esq. (Argued)
                 Office of the United States Attorney
                 615 Chestnut Street
                 Suite 1250
                 Philadelphia, PA 19106
                   Counsel for Appellee
                             2



                OPINION OF THE COURT

COWEN, Circuit Judge.
  Federal prisoner Joseph Fiorelli filed a pro se motion
under 28 U.S.C. § 2255 to set aside his conviction on the
grounds of ineffective assistance of counsel. The District
Court denied the motion without conducting a hearing on
Fiorelli’s claim. Fiorelli responded with a motion to
reconsider, which the District Court also denied. This
appeal followed.
   We consider whether Fiorelli filed his notice of appeal
within the time limits of Federal Rule of Appellate
Procedure 4(a), and hence, whether we have jurisdiction to
consider this case. We conclude that in computing the time
for an appeal, any delay by the prison officials in
transmitting the District Court’s order denying Fiorelli’s
§ 2255 motion must be subtracted from the time for filing
a motion for reconsideration. Prison delay, if established,
would toll the ten-day limitation for filing a motion under
Federal Rule of Civil Procedure 59, and make Fiorelli’s
appeal timely. The present record does not contain the
relevant dates of the prison’s receipt and delivery of the
District Court’s order denying Fiorelli’s § 2255 motion. We
will therefore vacate the District Court’s dismissal, and
remand for the appropriate factual findings.

                      BACKGROUND
   On December 6, 1994, Fiorelli was sentenced to 121
months imprisonment following his convictions for
racketeering, extortion, embezzlement, and obstruction of
justice. Some six years later, on January 26, 2000, Fiorelli
filed a motion to set aside his conviction pursuant to 28
U.S.C. § 2255 alleging ineffective assistance of counsel
during his trial. Fiorelli’s motion alleged that his counsel
failed to disclose a plea agreement offered by the
government that would have resulted in a 60-month term of
imprisonment. Fiorelli allegedly learned of this plea offer
during a conversation with Thomas Carroll, an attorney
                                      3


and “family friend.” Carroll did not represent Fiorelli in his
criminal trial, and Fiorelli alleged only that Carroll “was
aware” of a plea offer.
   On April 9, 2001, the District Court denied Fiorelli’s
§ 2255 motion. On about April 30, 2001, Fiorelli, again
representing himself, filed a motion for reconsideration
purportedly under Federal Rule of Civil Procedure 60(b).
The District Court denied the motion for reconsideration in
a second opinion entered on May 18, 2001. Fiorelli then
filed a notice of appeal on July 17, 2001. We issued a
Certificate of Appealability limited to the issue of ineffective
assistance of counsel.

                              DISCUSSION
   Determining whether we have jurisdiction to consider
this appeal requires us to address several novel questions.
First, whether the Federal Rules of Civil Procedure are
applicable to § 2255 motions. Second, when a district
court’s order is deemed “entered” under the federal rules.
Third, whether our decisions regarding the “mailbox rule”
in prison suits apply to motions for reconsideration. This
analysis is necessitated by the long delay in Fiorelli’s notice
of appeal. The District Court denied Fiorelli’s § 2255 motion
on April 9, 2001, and under Federal Rule of Appellate
Procedure 4(a)(1)(B),1 Fiorelli had sixty days to file a notice
of appeal. As Fiorelli’s appeal was not filed until July 17,
2001, his appeal is untimely unless the sixty-day limitation
is tolled.

                                     1.
  We first consider the applicability of the Federal Rules of
Civil Procedure to this § 2255 motion. Section 2255 permits
federal prisoners to challenge their sentence in a

1. Federal Rule of Appellate Procedure 4(a)(1)(B) states that “[w]hen the
United States . . . is a party, the notice of appeal may be filed . . . within
60 days after the judgment or order appealed from is entered.” The time
for appealing an order entered on a motion under § 2255 is governed by
Appellate Rule 4(a). Rule 11 Governing Section 2255 Proceedings for the
United States District Courts.
                             4


proceeding before the sentencing court, rather than the
district court in the jurisdiction where the prisoner is
confined. Kaufman v. United States, 394 U.S. 217, 222
(1969) (“[T]he legislation was intended simply to provide in
the sentencing court a remedy exactly commensurate with
that which had previously been available by habeas corpus
in the district the prisoner was confined.” (quoting Hill v.
United States, 368 U.S. 424, 427 (1962)); United States v.
Nahodil, 36 F.3d 323, 328-29 (3d Cir. 1994). Historically, a
federal prisoner’s motion to vacate, set aside, or correct a
sentence, under § 2255 was considered an independent civil
suit, and not a proceeding in the original criminal
prosecution. Heflin v. United States, 358 U.S. 415, 418 n.7
(1959); United States v. Hayman, 342 U.S. 205, 209 n.4
(1952); Neely v. United States, 546 F.2d 1059, 1065 (3d Cir.
1976); Washington v. United States, 450 F.2d 945, 946 (3d
Cir. 1971). Congress and the Supreme Court altered this
tradition in 1976 with the adoption of the Rules Governing
Section 2255 Proceedings for the United States District
Courts (the “Section 2255 Rules”). Pub. L. 94-426, § 1, 90
Stat. 1334 (1976). The Advisory Committee Notes to the
Section 2255 Rules state that contrary to the Supreme
Court’s earlier decisions, “a motion under § 2255 is a
further step in the movant’s criminal case and not a
separate civil action . . . .” Section 2255 Rule 1 advisory
committee notes (discussing S. Rep. No. 1526, at 2 (1948).
   The Section 2255 Rules do not automatically make all of
the Federal Rules of Procedure applicable to § 2255
motions, and the district courts are instructed to apply
either the Federal Rules of Civil Procedure or Criminal
Procedure if no other procedure is specifically prescribed.
Section 2255 Rule 12. Rule 11, however, specifically
prescribes that “[t]he time for appeal from an order entered
on a motion for relief made pursuant to these rules is as
provided in Rule 4(a) of the Federal Rules of Appellate
Procedure.” Thus, while a § 2255 motion is deemed a
further step in the movant’s criminal case, it is also
considered a civil remedy for purposes of appellate
jurisdiction.
  Confusion arises from the interplay of Section 2255 Rules
11 and 12, because neither explains whether the Federal
                             5


Rules of Civil Procedure related to Appellate Rule 4(a) are
also applicable. See, e.g., Fed. R. App. P. 4(a)(4)(A)
(measuring the time to file an appeal from the entry of the
order disposing of motions under Federal Rules of Civil
Procedure 50(b), 52(b), 54, 59 and 60). In this case, we are
concerned with the requirement under Civil Rule 58 that
judgments be set forth on a separate document and entered
in the docket of the district clerk, and the time limitations
accompanying motions for reconsideration under Civil
Rules 59 and 60.
  The majority of the circuit courts considering the
“separate document” requirement of Civil Rule 58(a) have
concluded that the Rule applies to § 2255 motions. United
States v. Johnson, 254 F.3d 279, 283-84 (D.C. Cir. 2001)
(collecting cases); and see Jenkins v. United States, 325
F.2d 942, 944-45 (3d Cir. 1963) (discussing practice prior
to promulgation of Civil Rule 58, and holding that “some
directive reflecting the final judgment” is always required
for filing an appeal); but see Williams v. United States, 984
F.2d 28, 30 (2d Cir. 1993) (holding no judgment is required
upon an order denying a § 2255 motion). In addition, both
of the circuit decisions to consider the issue have applied
Civil Rules 59 and 60 to § 2255 motions. United States v.
Martin, 226 F.3d 1042, 1048-49 (9th Cir. 2000); United
States v. Clark, 984 F.2d 31, 34 (2d Cir. 1993).
   As noted by the Second and Ninth Circuits, motions for
reconsideration may be filed in criminal cases. Martin, 226
F.3d at 1047 n. 7; Clark, 984 F.2d at 33. Extending the
time constraints imposed by Civil Rules 59(e) and 60(b) to
motions in § 2255 proceedings creates consistency with
petitions for writs of habeas corpus by state prisoners
under 28 U.S.C. § 2254. Browder v. Dir., Dep’t of Corrs.,
434 U.S. 257, 270-71 (1978) (applying Civil Rule 59 to
habeas proceeding); Section 2255 Rule 11 advisory
committee notes (“[B]ecause appellate rule 4(a) is applicable
in habeas cases, it likewise governs in § 2255 cases even
though they are criminal in nature.”). Using the time
provisions of both Civil Rules also synthesizes the directive
of Section 2255 Rule 11 to calculate the time for an appeal
pursuant to Appellant Rule 4(a), with the exception of
Appellate Procedure 4(a)(4) providing that motions under
                                    6


Civil Rules 59 and 60 may toll the period for filing a notice
of appeal.
   For these same reasons, we also hold that the “separate
document” requirement of Civil Rule 58(a) and the entry
requirement of 58(b) apply to § 2255 motions. In civil suits,
the period for filing a notice of appeal under Appellate Rule
4(a) commences with the entry of a judgment set forth on
a separate document as required by Civil Rule 58(a).
Gregson & Assocs. Architects v. Gov’t of the Virgin Islands,
675 F.2d 589, 591-93 (3d Cir. 1982). And as explained in
detail below, “entry” means the entry of the judgment in the
civil docket maintained by the clerk’s office. Thus, the
direction in Section 2255 Rule 11 to apply Appellate Rule
4(a) includes these related provisions of Civil Rule 58 that
explain how the time limitations for filing a notice of appeal
are calculated. Johnson, 254 F.3d at 283.

                                   2.
  Having concluded that the requirements of Civil Rule 58
apply to § 2255 proceedings, we take the opportunity to
explain the “somewhat arcane” matter of determining the
entry date of district court order under the Rule 58(b).
Houston v. Greiner, 174 F.3d 287, 288 (2d Cir. 1999). The
confusion arises from the numerous dates attached to the
District Court’s order denying Fiorelli’s motion for
reconsideration. The District Court dated its order May 16,
2001, and the Clerk’s Office stamped the order as received
on May 17, 2001. However, the docket sheet prepared by
the Clerk’s Office notes that the order was entered on May
18, 2001. Determining the date of entry is critical for
motion practice under the Federal Rules of Civil Procedure,2
and for the timely filing of a notice of appeal. Fed. R. App.
P. 4(a)(1)(B) (notice of appeal in a civil case where the
Unites States is a party must be filed “within 60 days after

2. See, e.g., Fed. R. Civ. P. 50(b) (motion for judgment as a matter of
law); 52(b) (motion to amend findings); 54(d)(2)(B) (motion for attorneys’
fees); 59(b) (motion for a new trial); 59(e) (motion to alter or amend
judgment); 60(b) (motion for relief from judgment or order); 62(a)
(automatic stay to enforce judgment).
                              7


the judgment or order appealed from is entered”); (b)(1)
(discussing criminal appeals).
   A judgment is deemed entered “when it is entered in the
civil docket” maintained by the clerk’s office. Fed. R. Civ. P.
58(b). The Civil Rules further state that the entry of a
judgment or order in the civil docket “shall show the date
the entry is made.” Fed. R. Civ. P. 79(a). Rules 58 and 79
make clear that “entry” is the formal act of adding the
judgment or order to the clerk’s docket, and that the date
of entry must be memorialized by a separate notation.
Thus, although an order may be signed by the district
court, received by the clerk, and entered in the docket on
different days, the entry date controls. Ogborn v. United
Food & Commercial Workers Union, Local No. 881, 305 F.3d
763, 769 (7th Cir. 2002); Houston, 174 F.3d at 288; Herrera
v. First N. Savs. & Loan Ass’n, 805 F.2d 896, 898-99 (10th
Cir. 1986); Harcon Barge Co., Inc. v. D&G Boat Rentals, Inc.,
746 F.2d 278, 281-82 (5th Cir. 1984); Jones v. Gann, 703
F.2d 513, 514 (11th Cir. 1983); Weedon v. Gaden, 419 F.2d
303, 305-06 (D.C. Cir. 1969).
  Here, the docket sheet prepared by the Clerk’s Office
contains two notations explicitly showing the District
Court’s final order denying reconsideration was entered on
May 18, 2001. Therefore, if Fiorelli’s motion for
reconsideration was timely filed, the time for taking an
appeal ran from that date.

                              3.
    We must therefore next consider whether the time for
filing an appeal was tolled by Fiorelli’s motion for
reconsideration. We begin by determining the character of
Fiorelli’s motion. Fiorelli captioned his motion “Petitioner’s
Motion for Relief Under Federal Rule of Civil Procedure
60(b),” and tailored his arguments to the standards of Rule
60(b)(1). However, the function of the motion, and not the
caption, dictates which Rule is applicable. Perez v. Cucci,
932 F.2d 1058, 1061 n.10 (3d Cir. 1991); Smith v. Evans,
853 F.2d 155, 158 (3d Cir. 1988).
  Although motions for reconsideration under Federal
Rules of Civil Procedure 59(e) and 60(b) serve similar
                                     8


functions, each has a particular purpose. Rule 60(b)
provides six bases for reconsideration, including “mistake,
inadvertence, surprise, or excusable neglect” as alleged by
Fiorelli. Fed. R. Civ. P. 60(b)(1). In contrast, Rule 59(e)
permits the filing of a motion to alter or amend a judgment.
A motion under Rule 59(e) is a “device to relitigate the
original issue” decided by the district court, and used to
allege legal error. Smith, 853 F.2d at 158-59 (citation
omitted); see also Ortho Pharm. Corp. v. Amgen, Inc., 887
F.2d 460, 463 (3d Cir. 1989). Fiorelli’s motion argued that
the District Court should have conducted an evidentiary
hearing on his claim. Fiorelli therefore urges more than an
inadvertent mistake by the District Court, and instead
argues that the District Court committed an error of law. As
a Rule 60(b) motion “may not be used as a substitute for an
appeal, and that legal error, without more” does not
warrant relief under that provision, we will deem Fiorelli’s
motion as a request under Rule 59(e). Smith, 853 F.2d at
158.
  Federal Rule of Appellate Procedure 4(a)(4) provides that
motions under Federal Rules of Civil Procedure 50(b), 52(b),
54, 59, or 60 timely filed in the district court toll the period
for filing a notice of appeal until the district court enters an
order disposing of the motion. In the case of motions under
Rule 59, the “timeliness” requirement of Appellate Rule
4(a)(4)(A) means only motions filed within ten days of the
disputed order toll the time limit for filing a notice of
appeal. Fed. R. Civ. P. 59(e); see also Fed. R. Civ. P. 6(b)
(precluding the enlargement of the time for filing a motion
under Civil Rule 59(e)).3 Here, Fiorelli’s motion for

3. In contrast, Civil Rule 60(b) provides that a motion for relief from a
judgment or order “shall be made within a reasonable time,” or if based
on mistake, newly discovered evidence, or fraud, “not more than one
year after the judgement, order, or proceeding was entered or taken.”
The 1993 amendment to Appellate Rule 4(a)(4)(A)(vi) requires that a
motion under Civil Rule 60 must be filed in the district court “no later
than 10 days after the judgment is entered” in order to toll the sixty-day
time limit for filing a notice of appeal. This provision harmonizes the ten-
day filing limitation of Civil Rule 59(e), the open-ended requirements of
Civil Rule 60(b), and the restriction in Appellate Rule 4(a)(4)(A) that only
“timely” motions toll the appeals deadline.
                                  9


reconsideration was filed as late as April 30, 2001, twenty-
one days after the District Court denied his § 2255 motion.
On its face, therefore, the motion exceeds the ten-day limit
for reconsideration and did not extend the time for filing a
notice of appeal.

                                 4.
   Fiorelli’s appeal may be properly filed if his motion for
reconsideration is deemed timely, thus invoking the tolling
provision of Appellate Rule 4(a)(4)(A). Tolling might be
appropriate given Fiorelli’s averment under penalty of
perjury that he received the District Court’s order denying
his § 2255 motion “on 4/22/01, during the normal mail
distribution at the federal prison where he is confined.” So
construed, Fiorelli alleges that the prison’s delay in
delivering the District Court’s order should be excluded
from the computation of the time to file his motion for
reconsideration. The allegation of prison delay is crucial,
because if we exclude the period of alleged delay in
calculating the ten-day limitation of Civil Rule 59(e),
Fiorelli’s motion for reconsideration would be timely and
trigger the tolling provision of Appellate Rule 4(a)(4)(A).
   We have not directly addressed whether the time elapsing
during the delivery of an appealable order through a
prison’s mail system is excluded from the time for filing a
motion for reconsideration.4 Our analysis is guided by our
decision in United States v. Grana, 864 F.2d 312 (3d Cir.
1989) that “in computing the timeliness of filings which are
jurisdictional in nature, any delay by prison officials in
transmitting notice of a final order or judgment . . . should
be excluded from the computation.” Id. at 313. In Grana, a
prisoner filed a notice of appeal fifteen days after the
expiration of the ten-day limitation specified in Federal Rule
of Appellate Procedure 4(b)(1)(A), but alleged that the prison
negligently handled his incoming mail, delaying his receipt
of the district court’s final order until after the expiration of
the appeal period.

4. Although we considered this issue in Smith, we did not decide the
question. United States v. Grana, 864 F.2d 312 (3d Cir. 1989); but see
Burns v. Morton, 134 F.3d 109, 114 (3d Cir. 1998).
                                    10


   We viewed incoming mail delays impacting the timeliness
of an appeal as analogous to the outgoing delays addressed
by the Supreme Court in Houston v. Lack, 487 U.S. 266
(1988). In Houston, the Supreme Court applied the “mailbox
rule” to prisoner filings and held that a pro se inmate’s
notice of appeal is deemed filed at the moment the notice is
delivered to prison authorities for forwarding. Under
Houston, the prison mail room is essentially “an adjunct of
the clerk’s office,” and a jurisdictionally sensitive document
is deemed filed on deposit. In re Flanagan, 999 F.2d 753,
759 (3d Cir. 1993). A showing of delay on the part of the
prison is thus unnecessary. Id.
   We noted that the prisoner in Grana faced a similar
dilemma, given his lack of control over his filing,
dependency on the prison authorities for delivery, and the
inability to contact the court clerk personally to determine
the status of his case. Grana, 864 F.2d at 315. For these
reasons, we “perceiv[ed] no difference between delay in
transmitting the prisoner’s papers to the court and
transmitting the court’s final judgment to him so that he
may prepare his appeal.” Id. at 316. Grana thus held that
any delay by the prison in transmitting notice of the district
court’s order is excluded from the computation of the time
for filing a notice of appeal. Id. Grana makes clear that only
delays caused by the prison warrant tolling of the filing
deadlines, and “[t]o the extent that the delay represents
slow mail, there is nothing that this Court can do to
preserve an appellant’s right to appellate review.” Id. (citing
Fed. R. Civ. P. 77(d)).5
   We see no reason why Grana’s exclusion of prison delays
from the time limits of jurisdictionally sensitive filings
should not apply to motions for reconsideration. The
timeliness of a motion under either Civil Rule 59 or 60 is
critical to appellate jurisdiction. Unreasonable delays within
the prison mail system might deprive the district court of
the opportunity to reconsider its own determinations, and

5. Fed. R. Civ. P. 77(d) provides in relevant part that “[l]ack 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 . . . .”
                              11


eliminate further appellate review. Accordingly, a prison’s
actual delay or interference in the delivery of a final order
of the district court is excluded from the calculation of the
timeliness of motions for reconsideration under Federal
Rule of Civil Procedure 59 or 60 filed by pro se inmates.
   Unlike outgoing delays occurring after a prisoner deposits
a court filing with prison authorities, incoming deliveries of
an appealable order require some allegation of actual delay
or interference. Houston’s fiction that the prison mail room
serves as a surrogate clerk’s office eliminates the need to
demonstrate a delay in the outgoing mail. In contrast, slow
mail outside the prison might delay the prisoner’s receipt of
a court order, despite the diligent efforts of the prison
officials. Thus, in Grana we noted the prisoner alleged that
the prison “negligently handled his incoming mail,” and
that “as a result he did not receive the district court’s final
order until . . . after the expiration of the appeal period.”
Grana, 864 F.2d at 314. Requiring an allegation of delay by
the prison recognizes that a mere lack of notice of the entry
by the clerk does not affect the time to appeal. Fed. R. Civ.
P. 77(d).
  Finally, although a delivery delay is not assumed to be
interference, and will require fact-finding by the district
court, Grana places the burden of establishing the relevant
dates on the prison, as “[t]he prison will be the party with
best and perhaps only access to the evidence needed to
resolve such questions.” Id. at 316; see also In re Flanagan,
999 F.2d at 757 (noting “prison authorities are in a position
to easily show when a document was received or mailed
under established prison procedures for recording the date
and time at which papers are received by prison officials in
the prison’s mail room”).

                              5.
    The District Court evaluated Fiorelli’s motion under Civil
Rule 60(b), and thus did not consider the timeliness of his
filing. While it is possible to construe Fiorelli’s statement
that he received the District Court’s order “during the
normal mail distribution” as alleging interference, this
claim is also consistent with mere “slow mail.” The record
                                    12


does not contain the relevant dates of the prison’s receipt
and delivery of the District Court’s order denying Fiorelli’s
§ 2255 motion. The date Fiorelli deposited his motion for
reconsideration with the prison authorities for mailing is
also absent. These facts are essential for a determination of
our jurisdiction, and require us to remand the matter for
the necessary findings.
  We are mindful that Fiorelli faces a difficult challenge on
remand. Fiorelli’s long delay in filing a notice of appeal
places him at the brink of the sixty-day limitation of
Appellate Rule 4(a). Nonetheless, on the present record, we
are unable to determine the timeliness of Fiorelli’s motion
for reconsideration, and confirm or deny our jurisdiction.
We will therefore remand the case to the District Court for
the appropriate fact finding consistent with this opinion.6

A True Copy:
        Teste:

                        Clerk of the United States Court of Appeals
                                    for the Third Circuit




6. As we do not reach the substance of Fiorelli’s constitutional challenge,
we express no opinion as to the merits of his claim.
