Argued February 19, 2013.
Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:04-cv-71155--Victoria A. Roberts, District Judge.
Allyson A. Miller, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PLLC, Birmingham, Michigan, for Appellant.
Raina Korbakis, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
Allyson A. Miller, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PLLC, Birmingham, Michigan, Michael D. Bossenbroek, WACHLER & ASSOCIATES, P.C., Royal Oak, Michigan, for Appellant.
Raina Korbakis, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
Before: DAUGHTREY, GIBBONS, and DONALD, Circuit Judges. DAUGHTREY, J., delivered the opinion of the court in which DONALD, J., joined. GIBBONS, J. (pp. 14-18), delivered a separate dissenting opinion.
MARTHA CRAIG DAUGHTREY, Circuit Judge.
This appeal reaches us in an unusual posture, following over ten years of litigation in two different actions in federal court that grew out of petitioner Hattie Tanner's conviction in Michigan state court for first-degree felony murder in 2000. After exhausting her state-level appeals, Tanner filed a habeas corpus petition in
district court that was denied in November 2005. Proceeding pro se, Tanner's effort to file a timely notice of appeal was thwarted by guards at the prison where she was incarcerated, and the notice was filed one day late. We dismissed the appeal, finding that the 30-day time period for appeal was mandatory and jurisdictional. Tanner subsequently filed a civil rights lawsuit under 42 U.S.C. § 1983, claiming that the guards violated her right of access to the courts, and won a jury verdict awarding monetary damages. On the basis of that verdict, Tanner next filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6), asking the district court to vacate and reinstate its judgment dismissing her habeas petition in the interest of justice, thereby restarting the 30-day period to appeal. The district court denied Tanner's motion, holding that it lacked jurisdiction to grant a motion that would effectively enlarge the time within which an appeal is permitted under Federal Rule of Appellate Procedure 4(a)(1), and that even if the court did have jurisdiction to grant relief, it would deny the motion on its merits. We now reverse the district court's judgment and remand the case to the district court to revive the 30-day period in which to file a notice of appeal in the habeas action.
FACTUAL AND PROCEDURAL BACKGROUND
Hattie Tanner was convicted of the 1995 armed robbery and stabbing death of Sharon Watson, a bartender at Barney's Bar and Grill in Calhoun County, Michigan, and was sentenced to life in prison without parole for the crime of first-degree felony-murder. On direct appeal, the Michigan Court of Appeals reversed Tanner's conviction, finding that the trial court had violated Tanner's constitutional right to due process by failing to provide her with DNA and serology experts. People v. Tanner, 255 Mich.App. 369, 660 N.W.2d 746, 767 (Mich. Ct. App. 2003). The Supreme Court of Michigan subsequently reversed the appeals court and remanded the case for reinstatement of Tanner's conviction. People v. Tanner, 469 Mich. 437, 671 N.W.2d 728, 731 (Mich. 2003).
Tanner then filed a federal habeas petition that the district court dismissed on its merits, entering judgment on November 8, 2005. After the dismissal, Tanner, who is functionally illiterate, sought assistance from a prison writ-writer with whom she met for the first time on November 15, 2005. Through this legal assistant, Tanner asked the prison to release a certificate of account activity, which she was required to append to her motion for leave to file in forma pauperis. The legal assistant did not receive that document until December 5, 2005, at which time Tanner's prison housing unit was on lockdown due to a misplaced set of keys. The legal assistant scheduled a " call-out" for December 6, so that Tanner could sign the papers that he had prepared and file them within the 30-day appeal period under Federal Rule of Appellate Procedure 4(a)(1)(A). Tanner told two prison guards that she needed to go to the law library to pick up legal papers to meet a filing deadline, but the guards refused to let her go, telling her, " Too bad," and threatening her with solitary confinement if she did not return to her cell. After the lockdown was lifted on the afternoon of December 8, Tanner retrieved the papers, signed the notice of appeal, and delivered it to the mailroom for handling as expedited legal mail the following day. Her notice of appeal was considered filed when it reached the mailroom on December 9, which was 31 days after the district court entered judgment.
Apparently unaware that Tanner's notice of appeal was untimely, the district
court clerk's office processed her notice of appeal, and the district judge granted her a certificate of appealability on December 23, 2005, permitting Tanner to appeal two of her habeas claims: that the state trial court violated her right to due process when it denied her request for DNA and serological experts and that there was insufficient evidence to convict her of felony-murder. Tanner's habeas appeal was docketed with this court on January 9, 2006, beyond the last day (January 7) on which Tanner could have timely requested an extension of the 30-day period for filing a notice of appeal if she had been notified by the district court clerk or the judge that her notice of appeal was late. See 28 U.S.C. § 2107(c); Fed. R. App. P. 4(a)(5)(A)(i). Instead, we delivered the bad news: on January 20, we issued a show-cause order directing Tanner to explain why her appeal should not be dismissed for lack of jurisdiction due to her failure to appeal within the statutory 30-day period set out in Rule 4(a)(1)(A). This order was the first notice to Tanner that there was a procedural problem with her appeal. She responded with an affidavit in which she explained that the guards at her prison had wrongfully prevented her from timely filing her notice of appeal. We nonetheless dismissed Tanner's appeal for lack of jurisdiction, finding that the notice of appeal was untimely.
On October 26, 2007, citing 42 U.S.C. § 1983 and claiming a constitutional violation, Tanner filed a civil rights action against the guards who had prevented her from timely filing her notice of appeal during the lockdown, alleging deliberate interference with her right of access to the courts. In March 2012, a jury concluded that the guards' actions wrongfully had in fact caused Tanner's late-filed notice of appeal. Based on that determination, the jury awarded Tanner $20,000 in compensatory damages and $7,000 in punitive damages. The district court entered judgment on the verdict, and the defendants did not appeal.
Less than two months after the verdict, Tanner returned to district court, filing a motion for relief from judgment in her habeas action pursuant to Federal Rule of Civil Procedure 60(b)(6), which permits a district court to " relieve a party . . . from a final judgment, order, or proceeding for . . . any . . . reason that justifies relief," other than the specific grounds listed in Rule 60(b)(1)-(5). See Fed.R.Civ.P. 60(b)(6). Tanner argued that " it would be a miscarriage of justice" if the district court permitted the prison guards' conduct--verified as unconstitutional by the jury's verdict in her civil rights action--to cause her to lose her right to appeal. In her motion, she asked the district court to vacate its judgment dismissing her habeas petition and to reinstate that order, thereby restarting the 30-day period of time for filing an appeal from the denial of habeas relief. The district court denied the motion for lack of jurisdiction, ruling that the time limit in Rule 4(a)(1) is mandatory and jurisdictional because it derives from a congressionally-enacted statute and that Rule 60(b) cannot provide a basis for " circumvent[ing] [Rule 4's] time requirements and extend[ing] or re-open[ing] the time for filing a notice of appeal." Tanner v. Yukins, No. 04-CV-71155-DT, 2012 WL 3109407, at *2 (E.D. Mich. July 31, 2012). In fact, extension of time and reopening of time for filing a notice of appeal are governed by Rule 4(a)(5) and by Rule 4(a)(6), respectively, under circumstances that did not pertain to Tanner's procedural position.
In denying the motion, the district court rejected the rationale of Lewis v. Alexander, 987 F.2d 392 (6th Cir. 1993), in which we held that " a district court may employ Rule 60(b) to permit an appeal outside the
time constraints of [Rule 4(a)(5)]." Id. at 395-96. The court noted that Lewis had been criticized by several courts, including the Sixth Circuit in an unpublished decision, and that Lewis " appears to be invalid" in light of Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (" Today we make clear that the timely filing of a notice of appeal in a civil case is a jurisdictional requirement . . . [and that we have] no authority to create equitable exceptions to jurisdictional requirements." ). The district court also issued an alternative holding, to the effect that even if it did have jurisdiction to grant Tanner's motion, it would not do so because Tanner failed to explain why extraordinary circumstances prevented her from filing a motion pursuant to Rule 4(a)(5) for ...