Appeal from the United States District Court for the Western District of Texas.
For LOUIS CASTRO PEREZ, Petitioner - Appellant: Mark Emery, Jonathan S. Franklin, Norton Rose Fulbright U.S. LLP, Washington, DC; Marcy Hogan Greer, Alexander Dubose Jefferson & Townsend, L.L.P., Austin, TX.
For WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee: Matthew Hamilton Frederick, Deputy Solicitor General, Office of the Solicitor General for the State of Texas, Austin, TX; Thomas Merrill Jones, Assistant Attorney General, Office of the Attorney General, Postconviction Litigation Division, Austin, TX.
Before JONES, DENNIS, and HAYNES, Circuit Judges. JAMES L. DENNIS, Circuit Judge, dissenting.
In this 28 U.S.C. § 2254 death penalty case, Perez appeals the March 27, 2012, dismissal (" March 2012 Judgment" ) of his habeas petition and application for a Certificate of Appealability (" COA" ). Although Perez failed to file a notice of appeal within 30 days of the judgment as required by Federal Rule of Appellate Procedure (" FRAP" ) 4(a)(1), in its most recent ruling in this case, the district court reopened the time to appeal pursuant to FRAP 4(a)(6), and Perez filed an appeal of the March 2012 Judgment following that
order. In Perez's previous appeal of the same ruling, we held, in part, that FRAP 4(a)(6) relief was not viable and dismissed Perez's appeal without remanding to the district court. Perez v. Stephens, 745 F.3d 174 (5th Cir.) [hereinafter " Perez I " ], cert. denied, 135 S.Ct. 401, 190 L.Ed.2d 289 (2014). The district court's order reopening the time to appeal thus conflicts with this court's earlier opinion and is barred by the mandate rule. Additionally, it reflects a misapplication of FRAP 4(a)(6). Accordingly, we DISMISS this appeal for lack of jurisdiction.
A Texas jury convicted Perez of capital murder and sentenced him to death. Perez I, 745 F.3d at 175. The Texas Court of Criminal Appeals affirmed his sentence on direct appeal and denied his habeas petition. Id. at 176. After exhausting his state court remedies, Perez filed a habeas petition in federal court pursuant to 28 U.S.C. § 2254. The district court denied Perez habeas relief and declined to grant a COA. The judgment denying the writ of habeas corpus and a COA was entered on March 27, 2012, meaning Perez had until April 26, 2012, to file his appeal. See FRAP 4(a)(1)(A).
Perez's attorney, Sadaf Khan, received notice of the judgment, but decided not to appeal after concluding that an appeal was not in her client's best interest. Khan informed neither Perez nor the consulting attorney, Richard Burr, of the judgment, nor did she consult Perez on whether to file an appeal. Burr only learned of Khan's failure to appeal after the deadline to timely appeal had passed. After Burr informed Khan that death penalty litigants should exhaust all appeals as a matter of course, Khan filed a motion on June 25, 2012, to reopen the time to appeal pursuant to FRAP 4(a)(6). The district court entered an order denying Khan's motion on July 3, 2012, (the " July 2012 Order" ) reasoning that Khan had received notice of the judgment when it was entered. See FRAP 4(a)(6) (providing that the court may only reopen the time to appeal if, inter alia, the moving party did not receive notice under Federal Rule of Civil Procedure 77(d)). The district court also noted that Khan missed the deadline to file a FRAP 4(a)(5) motion. Khan did not appeal the district court's order.
Perez then obtained new counsel who filed FRAP 4(a)(5) and 4(a)(6) motions, as well as a motion under Federal Rule of Civil Procedure (" Civil Rule" ) 60(b)(6), on August 29, 2012 (collectively, " August 29 Motions" ). The district court concluded that Khan had abandoned Perez and granted his Civil Rule 60(b) motion. The court directed the clerk to reenter the March 2012 Judgment denying habeas relief so that Perez could timely appeal. The March 2012 Judgment was reentered on December 18, 2012 (" December 2012 Order" ). While the district court dismissed Perez's FRAP 4(a)(5) and FRAP 4(a)(6) motions, it held in the alternative that it would have granted relief under FRAP 4(a)(6) if it had not entered judgment under Civil Rule 60(b). Perez filed an appeal that would be timely as to the reentered March 2012 Judgment, and the Director timely appealed the grant of Perez's August 29 Motion for Civil Rule 60(b) relief. In that appeal, the Director also filed a motion to dismiss for want of jurisdiction with this court on the grounds that Perez could not render his appeal timely through either Civil Rule 60(b) or FRAP 4(a)(6).
Perez I consolidated both appeals and held that the district court may not allow an otherwise untimely appeal by using Civil Rule 60(b) to reenter a judgment solely to make the appeal timely. 745 F.3d at 181. Because the December 2012 Order reopening the time to appeal was invalid, Perez's appeal of the March 2012 Judgment was untimely. Id.
Similarly, we held that FRAP 4(a)(6) did not provide Perez with an alternative avenue for filing a timely notice of appeal. Id. at 177 n.4. Perez did not appeal the district court's July 2012 Order or December 2012 Order denying his FRAP 4(a)(6) motions. Nevertheless, the December 2012 Order held in the alternative that FRAP 4(a)(6) was a viable means of relief, while William Stephens, the Director of the Texas Department of Criminal Justice (" the Director" ), argued in his motion to dismiss for want of jurisdiction that it was not. In light of this dispute Perez I explained:
The district court ruled in the alternative that it would have granted the Appellate Rule 4(a)(6) motion, despite its earlier conclusion that this rule did not apply because Khan received timely notice. Perez does not argue that Appellate Rule 4(a)(6) would provide an alternate basis to find his appeal timely. This rule does not cover an attorney's decisions that lead to an untimely appeal. See Resendiz v. Dretke, 452 F.3d 356 (5th Cir. 2006). Even if Appellate Rule 4(a)(6) were an available source of relief in a case such as this one, as suggested by the dissenting opinion, it permits only a fourteen-day reopening of the time for appeal. This appeal was filed twenty-eight days after the district court's Civil Rule 60(b)(6) order. Thus, Appellate Rule 4(a)(6) does not aid Perez here.
745 F.3d at 177 n.4. The court vacated the December 2012 Order granting Civil Rule 60(b) relief, " leaving the March 2012 judgment as the 'live' judgment as to which Perez's appeal is, admittedly, untimely." Id. at 181. Because neither Civil Rule 60(b) nor FRAP 4(a)(6) rendered Perez's appeal timely, the court " GRANT[ED] the Director's motion to dismiss . . . Perez's appeal, for want of jurisdiction." Id. Perez I did not remand to the district court, nor did it purport to vacate or reverse the district court's dismissal of Perez's August 29 Motions for FRAP 4(a)(5) and 4(a)(6) relief.
After this court's disposition of Perez and the Director's appeals and the Supreme Court's denial of certiorari, Perez filed a letter with the district court " Re-urging . . . Pending Motions to Reopen or Extend the Time to File Notice of Appeal." The letter requested that the court grant Perez's August 29 Motions for relief under FRAP 4(a)(5) and 4(a)(6), the two alternative bases the district court had previously considered and dismissed in its December 2012 Order. Perez reasoned that this court's vacatur of the district court's Civil Rule 60(b) judgment also vacated the district court's dismissal of both motions. Therefore, he argued that both motions remained pending before the district court. The district court seemingly agreed with this contention, and reopened the time to appeal pursuant to FRAP 4(a)(6) on the grounds that Khan, who had received notice of the denial of habeas relief, had abandoned Perez and thus Perez was not on notice of the March 2012 Judgment. The district court's order was ...