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Fitzsimmons v. Yeager

decided: February 19, 1968.

PAUL L. FITZSIMMONS, APPELLANT,
v.
HOWARD YEAGER, PRINCIPAL KEEPER OF THE NEW JERSEY STATE PRISON AT TRENTON, N.J. AND THE STATE OF NEW JERSEY



McLaughlin, Kalodner and Freedman, Circuit Judges. Staley, Chief Judge and McLaughlin, Kalodner, Hastie, Smith,*fn* Freedman, Seitz and Van Dusen, Circuit Judges. Van Dusen, Circuit Judge, for affirmance but concurring in part in Judge Freedman's opinion and dissenting in part from such opinion. Kalodner, Circuit Judge (dissenting in part, concurring in part).

Author: Freedman

Opinion OF THE COURT FREEDMAN, Circuit Judge.

In 1959 a jury in the Superior Court of New Jersey found appellant guilty of murder in the first degree with a recommendation of mercy under which he was sentenced to life imprisonment. The present appeal is from the district court's dismissal of his petition for habeas corpus on the ground that he had not exhausted the remedies available to him in the courts of New Jersey as required by 28 U.S.C. § 2254.*fn1

I.

We encounter at the threshold the jurisdictional problem which results when more than thirty days have elapsed after the denial of a petition for habeas corpus before a notice of appeal is filed or the certificate of probable cause required by 28 U.S.C. § 2253 is granted.

Habeas corpus is a civil remedy*fn2 and therefore is subject to the general requirement that a notice of appeal must be filed within thirty days from the entry of the order denying the petition.*fn3 Congress has added the requirement that where the detention complained of arises out of process issued by a state court, an "appeal may not be taken * * * unless the * * * judge who rendered the order [denying the petition for habeas corpus] or a circuit justice or judge issues a certificate of probable cause" 28 U.S.C. § 2253.*fn4 Rule 81(a) (2) of the Federal Rules of Civil Procedure continues this provision in force.*fn5

Here the district court's order dismissing the petition for a writ of habeas corpus was entered on December 7, 1966. On December 18, 1966 appellant filed in the district court an application for a certificate of probable cause and a petition for rehearing, both of which the court denied on December 23, 1966. The petition for rehearing was filed more than ten days after the entry of the order denying the petition for habeas corpus and therefore did not suspend the running of the time for filing a notice of appeal or any time required for obtaining a certificate of probable cause.*fn6 On January 18, 1967, thirty-nine days after the denial of the petition for habeas corpus, a certificate of probable cause was granted by a judge of this Court on an application made at least thirty-four days after denial of the petition.*fn7 Appellant then filed on January 24, 1967, more than a month and a half after the denial of the petition for habeas corpus, a formal notice of appeal in the district court.

In United States ex rel. Carey v. Keeper of Montgomery County Prison, 202 F.2d 267 (3 Cir.), cert. denied, Commonwealth of Pennsylvania ex rel. Carey v. Keeper of Montgomery County Prison, 345 U.S. 930, 73 S. Ct. 793, 97 L. Ed. 1360 (1953), a panel held that we were without jurisdiction to entertain the appeal because the application for a certificate of probable cause was not filed with us until shortly after the expiration of the thirty day period from the dismissal of the petition for habeas corpus, even though a notice of appeal and an application for a certificate of probable cause had been filed in the district court within the thirty day period and the district judge had denied the certificate only two days before the period expired. Our decision was based on the ground that the issuance of a certificate of probable cause is a condition precedent to the perfection of an appeal. In Commonwealth of Pennsylvania ex rel. Ricks v. Maroney, 314 F.2d 339 (3 Cir.), cert. denied sub nom. Ricks v. Maroney, 374 U.S. 816, 83 S. Ct. 1711, 10 L. Ed. 2d 1039 (1963), another panel denied per curiam an application for a certificate of probable cause because it was lodged with our Clerk more than thirty days after the denial of the petition for habeas corpus.

Under our practice these decisions are binding on all panels of the Court. Panels therefore have deemed it to be their duty when considering appeals from the denial of habeas corpus in cases of state detention to be alert for the detection, as jurisdictional defects, of untimeliness in the application or grant of certificates of probable cause or in the filing of notices of appeal.*fn8

Difficulties have resulted from the administration of these principles and practical considerations have made especially unworkable the requirement that the certificate of probable cause must be granted within thirty days from the date of the denial of the petition for habeas corpus. Whatever time is taken in the consideration of the application by the district judge reduces the time left for an application to the Court of Appeals. At times we have been required to act at the edge of the thirty day deadline, without adequate time to make the full examination of the original record papers which is frequently necessary because so many of these applications are made by prisoners pro se.*fn9 We therefore ordered the present case to be resubmitted to the Court en banc in order to re-examine the problem afresh.

On full reconsideration of the subject we have reached the following conclusions, which we set out as rules for the guidance of the bar and of prisoners acting pro se in habeas corpus cases where the detention complained of arises out of process issued by a state court:

1. Notice of appeal must be filed in the district court within thirty days of the denial of a petition for habeas corpus. This is mandatory under the statute*fn10 as well as the Federal Rules of Civil Procedure*fn11 and is a jurisdictional requirement. See Fallen v. United States, 378 U.S. 139, 142, 84 S. Ct. 1689, 12 L. Ed. 2d 760 (1964); United States v. Robinson, 361 U.S. 220, 80 S. Ct. 282, 4 L. Ed. 2d 259 (1960). A paper will not be deemed inadequate as a notice of appeal because of informality in its form or title, so long as from its nature it evidences an intention to appeal.*fn12 Thus, while the filing of a formal notice of appeal is preferable practice, an application for leave to appeal in forma pauperis*fn13 or an application for a certificate of probable cause,*fn14 will be treated as a notice of appeal if no formal notice has been filed.

2. The running of the thirty day period for the filing of a notice of appeal will not be terminated by a motion for rehearing under Rule 59(a) or any similar motion unless it is timely and made within the time fixed by the appropriate rule, as required by Rule 73(a) of the Federal Rules of Civil Procedure and proposed Rule 4(a) of the Federal Rules of Appellate Procedure.

3. The filing of a notice of appeal within thirty days is effective alone as the taking of an appeal, without the filing of a separate application for a certificate of probable cause or the granting of such a certificate. See proposed Rule 22(b) of Federal Rules of Appellate Procedure.

4. A certificate of probable cause need not be sought or obtained within the period of thirty days from the denial of the petition for habeas corpus.*fn15 The statute (28 U.S.C. § 2253) fixes no prescribed time within which a certificate of probable cause must be sought or obtained, nor does it require the issuance of a certificate of probable cause as a condition precedent to the filing of a notice of appeal. It is true that § 2253 provides that an appeal may not be "taken" in habeas corpus actions attacking state detention unless a certificate of probable cause is issued, but this must be read to mean, not that a notice of appeal may not be filed with its usual effect, but that the appeal may not proceed until a certificate of probable cause is issued. This interpretation is in harmony with Rule 73(a) which provides: "Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal." Proposed Rule 3(a) of the Federal Rules of Appellate Procedure contains the same language.

A certificate of probable cause may be applied for informally, and a paper will be deemed an application for a certificate of probable cause regardless of its form or how it is entitled if its contents disclose the purpose to obtain a certificate of probable cause.*fn16

5. The district judge, when denying a petition for habeas corpus, shall at the same time state whether in his opinion there is probable cause for an appeal.*fn17 An application may be made to such district judge for reconsideration of his denial of a certificate of probable cause. In any event the filing of a notice of appeal, whether formal or informal, is necessary even if the district judge grants a certificate of probable cause at the time he denies a petition for habeas corpus. If the district judge denies a certificate of probable cause, a timely filing of a notice of appeal will be treated as an application for a certificate of probable cause addressed to the judges of the Court of Appeals. See proposed Rule 22(b) of the Federal Rules of Appellate Procedure.

6. Where an appeal has been filed and the district judge has refused to grant a certificate of probable cause, the Clerk of the Court of Appeals shall promptly present the file in the case to a judge or a panel of the Court for determination whether to grant or deny a certificate of probable cause. See proposed Rule 22(b) of the Federal Rules of Appellate Procedure.

These rules will be applied to all pending and future cases. They will be set out in an amendment to our Rules of Court, and will supersede our present Rule 11(4),*fn18 which is now revoked.

II.

In the present case the petition for rehearing was filed on December 18, 1966, more than ten days after the order denying the petition for habeas corpus. It was therefore untimely under Rule 59(a) and hence did not terminate the running of the time for appeal under Rule 73(a). But the application for a certificate of probable cause which was filed with the district court on December 18, 1966, eleven days after the denial of the petition for habeas corpus on December 7, 1966, was effective as a notice of appeal filed within thirty days of the denial of the petition for habeas corpus. The notice of appeal formally filed in the district court thereafter, on January 24, 1967, may be deemed surplusage.

Since an informal but timely notice of appeal was filed within thirty days and a certificate of probable cause was issued by a judge of this court, even though more than thirty days after the decision below,*fn19 the appeal was proper and we have jurisdiction to consider it on the merits. To the extent that our prior decisions such as United States ex rel. Carey v. Keeper of Montgomery County Prison, supra, and Commonwealth of Pennsylvania ex rel. Ricks v. Maroney, supra, are inconsistent with the rules and decision we have now announced they are overruled.

III.

We turn now to the substance of the appeal. Almost nine years ago, on February 18, 1959, after a joint trial a jury found appellant guilty of first degree murder with a recommendation of life imprisonment. Sentence was imposed on February 27, 1959. Appellant did not attack his conviction and sentence until September 16, 1965, when he filed a petition for habeas corpus in the Superior Court of New Jersey claiming illegal arrest, illegal search and seizure and the use in evidence of a coerced confession. The Superior Court denied the petition in November, 1965, on the ground that the relief sought was not cognizable on habeas corpus and that the exclusive means of challenging the conviction was under the Post-Conviction Relief Rules (N.J. Rules 3:10A-1 et seq.), but that he was barred from invoking them because more than five years had elapsed since the rendition of the judgment of conviction and he had not alleged any facts showing that the delay was due to his excusable neglect. (N.J. Rule 3:10A-13.) On January 18, 1966 the Supreme Court of New Jersey by order granted appellant's motion for leave to proceed as an indigent and at the same time ordered his appeal dismissed "for want of merit". The district court denied the present petition for a writ of habeas corpus on the ground that appellant had failed to exhaust the remedies available to him in the courts of New Jersey as required by 28 U.S.C. § 2254,*fn20 because he had not invoked the New Jersey Post-Conviction remedy which the court declared was still available to him.

There are two reasons why appellant's petition for habeas corpus should be considered on the merits without his being required to resort to the New Jersey Post-Conviction remedy.

In the first place New Jersey Rule 3:10A-5 makes a prior adjudication on the merits in any proceeding including the proceedings resulting in the conviction a conclusive bar to any relief on that ground in any post-conviction proceeding.*fn21 The district judge in the present case stated that the issue of the voluntariness of appellant's confession had been submitted to the court and jury at the trial and decided adversely to him there. The Superior Court of New Jersey in denying his application for post-conviction relief said that he was barred not only by the lapse of time, but also because the voluntariness of the confession was a matter which must be attacked on direct appeal. We need not attempt an authoritative construction of New Jersey Rule 3:10A-5 on this point,*fn22 for the Supreme Court of New Jersey has already dismissed "for want of merit" appellant's petition for habeas corpus. To require him to retread the path of post-conviction relief in New Jersey is to send him on a road which the highest court of New Jersey has already barred and to deny him the opportunity to present on federal habeas corpus the constitutional claims which the state courts have refused to hear.*fn23

Secondly, due to no fault of appellant, the time within which he might have sought post-conviction relief has now expired. In November, 1965, the Superior Court of New Jersey had held that appellant was barred by New Jersey Rule 3:10A-13 from obtaining post-conviction relief because he had failed to file his petition within five years after his conviction and has not alleged that his delay was due to excusable neglect. It is true that the Rule provides a five year bar unless the petition alleges facts showing that the delay was due to the defendant's "excusable neglect", but it also provides that the limitation shall not reduce the right to invoke the remedy within three years after the effective date of the Rule.*fn24 The Rule became effective on January 2, 1964*fn25 and hence, although the five year period from the date of the judgment expired by February 27, 1964, the three year period from the effective date of the Rule -- which is applicable here -- did not expire until January 2, 1967. It therefore appears that the petition for habeas corpus which appellant filed in the Superior Court of New Jersey on September ...


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