Hattie Tanner v. Joan Yukins

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 15a0009p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

HATTIE TANNER, ┐

Petitioner-Appellant, │

│

v. │ No. 12-2114

│

JOAN YUKINS, >

│

Respondent-Appellee. │

┘

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.

Argued: February 19, 2013

Decided and Filed: January 20, 2015

Before: DAUGHTREY, GIBBONS, and DONALD, Circuit Judges

_________________

COUNSEL

ARGUED: 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. ON BRIEF: 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.

DAUGHTREY, J., delivered the opinion of the court in which DONALD, J., joined.

GIBBONS, J. (pp. 14–18), delivered a separate dissenting opinion.

1

No. 12-2114 Tanner v. Yukins Page 2

_________________

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, 660 N.W.2d 746, 767 (Mich. Ct. App. 2003). The Supreme Court of

No. 12-2114 Tanner v. Yukins Page 3

Michigan subsequently reversed the appeals court and remanded the case for reinstatement of

Tanner’s conviction. People v. Tanner, 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

No. 12-2114 Tanner v. Yukins Page 4

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 28 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(a)(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.

No. 12-2114 Tanner v. Yukins Page 5

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

(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 an extension of time. We ultimately granted a certificate of appealability on the

issue of whether the district court erred in denying Tanner’s Rule 60(b) motion. We now

reverse.

DISCUSSION

The Federal Rules of Appellate Procedure establish the deadlines that govern filings in

this court. See Fed R. App. P. 1(a)(1). When a party is properly notified of a judgment, Rule

4(a)(1)(A) provides the party with 30 days to appeal. Fed. R. App. P. 4(a)(1)(A). Pursuant to

Rule 4(a)(5), a movant may request a filing extension of up to 30 days upon a showing of

“excusable neglect or good cause,” Fed. R. App. P. 4(a)(5)(A)(ii), but must do so within the

30 days following the initial 30-day appeal period. Fed. R. App. P. 4(a)(5)(A)(i).

Notwithstanding Rule 4(a)(1)’s time limits for filing a notice of appeal, we conclude that,

in this case, the district court had the authority to vacate and reinstate its denial of Tanner’s

habeas petition pursuant to Rule 60(b). That rule permits the court to grant relief from a final

judgment, order, or proceeding for several enumerated reasons, as well as “any other reason that

justifies relief.” Fed. R. Civ. P. 60(b)(6). Rule 60(b), which dates back to the earliest

promulgation of the federal rules, “reflects and confirms the courts’ own inherent and

discretionary power, ‘firmly established in English practice long before the foundation of our

Republic,’ to set aside a judgment whose enforcement would work inequity.” Plaut v.

Spendthrift Farm, Inc., 514 U.S. 211, 233-34 (1995) (quoting Hazel-Atlas Glass Co. v. Hartford-

No. 12-2114 Tanner v. Yukins Page 6

Empire Co., 322 U.S. 238, 244 (1944)); see also id. at 234-35 (explaining that Rule 60(b) “is

simply the recitation of pre-existing judicial power”); Johnson v. Bell, 605 F.3d 333, 336 (6th

Cir. 2010) (stating that Rule 60(b) “is inherently equitable in nature,” and “empowers district

courts to revise judgments when necessary to ensure their integrity”); Fed. R. Civ. P 60(b),

advisory committee notes (explaining that the committee “endeavored . . . to amend the rules to

permit . . . the granting of various kinds of relief from judgments which were permitted in the

federal courts prior to the adoption of these rules”).

In this case, the district court concluded that this familiar mechanism was unavailable

because granting Tanner’s Rule 60(b)(6) motion would violate the congressionally-enacted

“statutory limitations on the timing of appeals,” Bowles, 551 U.S. at 210, limitations that the

Supreme Court has recognized as “mandatory and jurisdictional.” Id. at 209 (internal quotation

marks and citation omitted). In Bounds v. Smith, 430 U.S. 817 (1977), however, the Supreme

Court held that prison inmates possess a “fundamental constitutional right of access to the

courts” that “requires prison authorities to assist inmates in the preparation and filing of

meaningful legal papers by providing prisoners with adequate law libraries. . . .” Id. at 828.

Thus, if the district court were correct, this constitutional right would be meaningless: federal

courts would be required to acquiesce in the unconstitutional conduct of prison guards who delay

an inmate’s ability to file an appeal until it is too late to meet the Rule 4 deadlines. In an extreme

case, for example, the district court’s decision might permit a prison guard to extort sexual favors

from a prisoner with a looming filing deadline, in exchange for access to the law library, or

prevent an inmate from use of the law library to prepare a timely action against that guard or his

colleagues, and at the same time preclude a judicial remedy for the untimely filing that results.

We reject the notion that Rule 4(a)(1) can be used to empower prison guards to deprive inmates

of their right to appeal, while simultaneously disempowering federal courts from using Rule

60(b) to remedy the violation.

By the time Tanner filed her Rule 60(b)(6) motion for relief from judgment in this case,

she had established a violation of her constitutional right of access by means of a jury’s verdict—

certainly a rare example of success for an inmate litigant. Given the § 1983 decision, we

conclude that Rules 4(a)(1) and 4(a)(5) do not deprive the district court of jurisdiction to vacate

No. 12-2114 Tanner v. Yukins Page 7

and reinstate its denial of Tanner’s habeas petition pursuant to Rule 60(b)(6). Furthermore, as

explained below, we further conclude that the Supreme Court’s decision in Bowles is

distinguishable from the situation presented here and does not change the analysis set out in

Lewis.

The distinction arises from the recent history of Rule 4. Until 1991, Rule 4(a)(5) was the

only provision in the Rules of Appellate Procedure that provided a means for seeking an

extension of the appeal period on any basis. See In re Stein, 197 F.3d 421, 424 (9th Cir. 1999);

In re Cosmopolitan Aviation Corp., 763 F.2d 507, 514 (2d Cir. 1985); Silvia v. Laurie, 594 F.2d

892, 893 (1st Cir. 1979). The drafters of the Rules of Appellate Procedure, however, were aware

of the long-standing “problem of litigants who fail to receive notice of entry of judgment before

the appeal time runs out,” and realized that Rule 4(a)(5) “would not aid a litigant who first

learned of the entry of judgment more than 30 days after the original appeal time ran out.”

Wright & Miller, 16A Fed. Prac. & Proc. Juris. § 3950.6. The committee thus amended Rule 4

in 1991 to address “the plight of this litigant” by adding subdivision (6) to Rule 4(a). Id. This

provision was the one at issue in Bowles.

Subdivision (6) of Rule 4(a) provides an avenue for relaxing the time period for appeal in

cases in which the litigant failed to receive notice of entry of judgment. In its current form,

which is “very similar” to the original text of the amendment, id., Rule 4(a)(6) permits a district

court to reopen the time to appeal for a maximum of 14 days if the moving party did not receive

notice of judgment pursuant to Federal Rule of Civil Procedure 77(d) within 21 days of the entry

of that judgment.1 Fed. R. App. P. 4(a)(6). Rule 4(a)(6) also provides, however, that the district

court may entertain a Rule 4(a)(6) motion only if it is filed within 180 days of the entry of the

1

Federal Rule of Civil Procedure 77(d) works in tandem with Appellate Rule 4(a)(6) and was revised in 1991

to reflect that year’s changes to Rule 4. See Fed. R. Civ. P. 77(d), advisory committee notes (stating that Rule 77(d)

was “a companion to the concurrent amendment to Rule 4 of the Federal Rules of Appellate Procedure”). Rule

77(d) provides that a litigant’s failure to receive notice of an entry of judgment “does not affect the time for appeal

or relieve—or authorize the court to relieve—a party for failing to appeal within the time allowed, except as allowed

by Federal Rule of Appellate Procedure 4(a).” Fed. R. Civ. P. 77(d)(2). The committee explained that, with the

increase in clerk-office caseloads, the incidents of litigants failing to receive notice had increased, and the revisions

were intended “to permit district courts to ease strict sanctions now imposed on appellants whose notices of appeal

are filed late because of their failure to receive notice of entry of a judgment.” Id. The revisions also incentivize

(and provide a means for) a prevailing party to notify the losing party of a judgment in order to ensure that the

appeals clock starts running. Id. One federal appeals court has characterized Rule 4(a)(6) and Rule 77(d) as

“form[ing] a tessellated scheme.” Stein, 197 F.3d at 426.

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judgment, or within 14 days after receiving notice, whichever is earlier. Fed R. App. P.

4(a)(6)(B).

The new provision thus established “an outer time limit of 180 days for a party who fails

to receive timely notice of entry of a judgment to seek additional time to appeal,” id., advisory

committee notes, and reflected the drafters’ attempt to “balance[] the inequity of foreclosing

appeals by parties who do not receive actual notice of a dispositive order against the need to

protect the finality of judgments.” Bowles v. Russell, 432 F.3d 668, 673 (6th Cir. 2005), aff’d,

551 U.S. 205 (2007) (quoting Vencor Hosps., Inc. v. Standard Life & Accident Ins. Co., 279 F.3d

1306, 1309 (11th Cir. 2002) (internal quotation marks and citation omitted)). We have

recognized that although the application of Rule 4(a)(6) “may work misfortune” in some cases,

id. (quoting Clark v. Lavallie, 204 F.3d 1038, 1041 (10th Cir. 2000) (internal quotation marks

omitted)), its “essence” is “finality of judgment.” Id. (quoting Clark, 204 F.3d at 1041 (internal

quotation marks omitted)).

In Bowles, the petitioner failed to receive timely notice of the denial of his habeas

petition. Bowles, 432 F.3d at 669. Once Bowles did receive notice, he sought relief pursuant to

Rule 4(a)(6) from the time period in Rule 4(a)(1). Id. at 670. His motion to reopen was filed

properly within the 180-day period set out in the rule. Id. The district court granted the motion

but, inexplicably, directed Bowles to file his notice of appeal by February 27, 2003, which gave

him 17 days to appeal, longer than the outer limit of 14 days prescribed by Rule 4(a)(6). Id.

Bowles filed on February 26, “timely under the judge’s order, but clearly not in compliance with

the Rule.” Id. at 670-71. We held that the 14-day period in Rule 4(a)(6) “is not susceptible to

extension through mistake, courtesy, or grace.” Id. at 669. The Supreme Court affirmed,

holding that a federal appeals court lacks jurisdiction to decide the merits of a habeas appeal if

the notice of appeal was filed with the district court more than 14 days after a Rule 4(a)(6)

motion was filed. 551 U.S. at 206-07.

The decision in Bowles—that we lack jurisdiction to hear an appeal filed outside the 14-

day period in Rule 4(a)(6), even where weighty equitable considerations exist—is

understandable in light of the drafting history of Rule 4(a)(6), which demonstrates that the time

periods in Rule 4(a)(6) are themselves an accommodation of equitable considerations. See

No. 12-2114 Tanner v. Yukins Page 9

Vencor Hosps., 279 F.3d at 1310. Unlike Bowles, however, the case before us does not involve a

Rule 4(a)(6) notice problem. Here, as in Lewis, Tanner has asked the district court to grant her

relief from judgment, pursuant to Rule 60(b)(6), not to solve a problem related to a failure to

receive notice, but to restore her right to appeal, a right she lost due to the unconstitutional

conduct of the guards at her prison. Even if Rule 4(a)(6) represents a mandatory and

jurisdictional balancing of the interests of fairness and finality in cases in which there has been a

notice problem, nothing in the drafting history of Rule 4 suggests that the drafters intended Rule

4(a)(6) to be the sole means of accommodating all equitable considerations that arise due to the

Appellate Rules’ strict filing deadlines. Our decision in Lewis thus controls this situation and, as

Lewis demonstrates, Rule 60(b) is an appropriate means of considering equitable interests when a

notice of appeal is filed late for reasons other than lack of notice.

As here, Lewis involved a habeas petitioner’s Rule 60(b) motion in which Lewis asked

the district court to vacate and reinstate its judgment denying his petition. 987 F.2d at 394.

Lewis had received timely notice of the entry of judgment against him, and Lewis’s attorney had

mailed the notice of appeal within the 30-day period prescribed by Rule 4(a)(1). The notice,

however, was docketed four days after the expiration of the 30-day period. Id. Lewis’s attorney

was unaware that the notice of appeal had not been timely docketed and therefore failed to move

within the 30-day period in Rule 4(a)(5) for an extension of time. Id. When Lewis’s attorney

finally did realize that entry of the notice of appeal had been delayed, he filed a Rule 60(b)(1)

motion for relief from judgment, asking the district court to vacate and reinstate its denial of

Lewis’s habeas petition, thereby reviving the time for appeal under Rule 4(a)(1)(A). Id. We

concluded that this court “has no jurisdiction to review the lower court’s decision on the merits if

the notice of appeal is filed in an untimely manner,” but that a “district court retains jurisdiction

to proceed with matters that are in aid of the appeal.” Id. (citation and internal quotation marks

omitted). Hence, we held that the district court retained jurisdiction to utilize Rule 60(b) “to

revive a lost right of appeal,” id. at 396 (emphasis added), and that, upon granting a Rule 60(b)

motion, the district court should vacate and reinstate the unfavorable decision. Id. at 395. Rule

60(b) thus differs from Rule 4(a)(6) because it provides the district court with a mechanism for

accommodating equitable considerations other than the notice problems at the heart of Rule

4(a)(6); it “confers upon the district court a broad equitable power to ‘do justice.’” Johnson,

No. 12-2114 Tanner v. Yukins Page 10

605 F.3d at 336. Accordingly, we conclude that Bowles did not invalidate our reasoning in

Lewis.

Lewis thus remains good law in this circuit, and the district court in this case erred in

concluding otherwise. A review of the court’s analysis shows why. In its opinion, the district

court cited two Sixth Circuit cases in which we discussed, but did not overturn, Lewis: Brown v.

United States, No. 11-5293, 2011 WL 3555630 (6th Cir. Aug. 3, 2011), and FHC Equities,

L.L.C. v. MBL Life Assurance Corp., 188 F.3d 678 (6th Cir. 1999). Brown is an unpublished

decision, which addressed whether a Rule 60(b)(6) motion can provide a basis for extending the

period set out in Appellate Rule 4(a)(6). It lacks precedential value and, in any event, did not

address the provisions of Rule 4 that are at issue in this case. FHC Equities, if anything,

supports an outcome contrary to that for which the district court cited it. See 188 F.3d at 683-87.

In that case, we analyzed in detail whether an attorney’s “misinterpretation of rules constitutes

‘mistake’ justifying the setting aside of a judgment under Rule 60(b).” Id. at 687. Although we

concluded that “[t]he district court did not abuse its discretion in refusing to rule that the

attorney’s misinterpretation of the rules was a ‘mistake’ within Rule 60(b),” our analysis actually

presumed the availability of Rule 60(b) as a basis on which to provide a party with relief from

Rule 4(a) in some circumstances. Id. We held only that the attorney error in FHC Equities was

insufficient to grant that relief. Id. Thus, FHC Equities did not overrule Lewis; in fact, it

followed Lewis.

The district court also briefly alluded to “several courts” that have “criticized” Lewis, but

cited only to Brown and FHC Equities, which, as noted, are Sixth Circuit cases. Brown itself

cited no cases from other circuits, and FHC Equities cited a single Eighth Circuit case that

disavowed Lewis. See FHC Equities, 188 F.3d at 684 (citing Zimmer St. Louis, Inc. v. Zimmer

Co., 32 F.3d 357, 361 (8th Cir. 1994)). Zimmer, however, addressed whether Rule 60(b)(6) can

provide a basis for extending the time period set out in Appellate Rule 4(a)(6). Zimmer, 32 F.3d

at 361. By failing to acknowledge the distinction between notice and non-notice cases under

Rule 60(b)(6), the district court failed to substantiate its determination that Lewis is invalid.

Moreover, we have found no cases decided by our sister circuits post-Bowles that provide

support for the district court’s decision. Since Bowles, only the Fifth Circuit has concluded that

No. 12-2114 Tanner v. Yukins Page 11

Rule 60(b)(6) is unavailable as a means of providing relief to an individual who missed the

appellate deadlines in Rules 4(a)(1) and 4(a)(5).2 See Perez v. Stephens, 745 F.3d 174, 177 (5th

Cir. 2014). Perez, however, involved a habeas petitioner who lost his right to appeal the denial

of his habeas petition due to his attorney’s unilateral decision to waive his client’s right to

appeal. Id. at 176. Although the attorney’s conduct may have been egregious, Perez did not

involve the type of unconstitutional conduct by a state actor that is at issue in this case. It is

therefore unpersuasive. Moreover, the Perez opinion created a circuit split. The Ninth Circuit

had previously held in Mackey v. Hoffman, 682 F.3d 1247 (9th Cir. 2012), that Bowles did not

bar a district court from granting relief pursuant to Rule 60(b)(6) from the time limits in Rule

4(a)(1) and Rule 4(a)(5) because “Mackey [sought] relief pursuant to Rule 60(b)(6) to cure a

problem caused by attorney abandonment and not by a failure to receive Rule 77(d) notice.” Id.

at 1253.

For all of the foregoing reasons, we conclude that the district court improperly

determined that it lacked jurisdiction to rule on Tanner’s Rule 60(b)(6) motion and erred in

failing to recognize that Lewis remains binding precedent post-Bowles. That leaves the question

of the district court’s determination on the merits.

The district court provided an alternative holding, ruling that even if it had jurisdiction to

grant Tanner’s Rule 60(b)(6) motion, it would deny the motion because Tanner failed to

demonstrate that extraordinary circumstances prevented her from timely filing a Rule 4(a)(5)

motion to extend the time in which to file an appeal, a decision that we review for abuse of

discretion. See Thompson v. Bell, 580 F.3d 423, 442 (6th Cir. 2009). “A district court abuses its

discretion when it relies on erroneous findings of fact, applies the wrong legal standard,

misapplies the correct legal standard when reaching a conclusion, or makes a clear error of

judgment.” Randleman v. Fidelity Nat’l Title Ins. Co., 646 F.3d 347, 351 (6th Cir. 2011)

(internal quotation marks and citation omitted).

2

In Perez, the Fifth Circuit cited several cases that it believed supported its conclusion that Rule 60(b)(6) is

unavailable as a means of providing relief from the time limits in Rule 4(a)(1) and Rule 4(a)(5). See Perez, 745 F.3d

at 180 (citing cases). These cases, however, are either unpublished and therefore of limited persuasive value, or are

distinguishable because they involve requests for extensions from the time period in Rule 4(a)(6).

No. 12-2114 Tanner v. Yukins Page 12

Relief pursuant to Rule 60(b)(6) is available “only in exceptional or extraordinary

circumstances which are not addressed by the first five numbered clauses of the Rule” and “only

as a means to achieve substantial justice.” Olle v. Henry & Wright Corp., 910 F.2d 357, 365

(6th Cir. 1990) (internal quotation marks and citation omitted). The rule contemplates situations

where “something more . . . is present” than those situations contemplated by the other clauses in

the rule. Id. (internal quotation marks and citation omitted). “The ‘something more,’ . . . must

include unusual and extreme situations where principles of equity mandate relief.” Id. (emphasis

in the original). In considering the merits of a Rule 60(b) motion, a district court is required to

“intensively balance numerous factors.” See Blue Diamond Coal Co. v. Trustees of UMWA

Combined Benefit Fund, 249 F.3d 519, 529 (6th Cir. 2001).

In this case, however, the district court did not undertake “intensive balancing” of

“numerous factors,” instead making the conclusory statement that it would deny the motion

because Tanner “offered no explanation as to why she was unable to properly file a motion for

an extension of time in which to file her notice of appeal as provided by Federal Rule of

Appellate Procedure Rule 4(a)(5).” The omission of meaningful analysis led the court to a clear

error in judgment.

The extraordinary circumstance in this case should have been obvious to the court and

arises from the timeline of the appeal. To recap that sequence: Tanner’s habeas petition was

denied by the district court in an opinion dated November 7, 2005, and judgment was entered on

November 8. Her notice of appeal was therefore due no later than December 8 but, because of

circumstances beyond her control at the prison facility, was not delivered to prison officials—

and thereby effectively filed under Houston v. Lack3—until December 9, one day late. The

district court clerk nevertheless received the notice of appeal on December 13 and entered it

three days later, on December 16, without notifying Tanner—or, presumably, the district judge—

that it was late-filed. The district judge granted both Tanner’s application to proceed in forma

pauperis and her motion for a certificate of appealability on December 23, again without noting

that the order was actually a nullity because the notice of appeal was untimely. Tanner thus had

no reason to think that her appeal was flawed until we issued the show-cause order on January

3

487 U.S. 266, 276 (1988) (holding that an inmate’s notice of appeal “[is] filed at the time petitioner

deliver[s] it to the prison authorities for forwarding to the court clerk”).

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20, 2006, almost two weeks beyond the date when a motion to extend under Rule 4(a)(5)(A)

would have been timely, i.e., January 7.

We would reasonably expect a lawyer with basic knowledge of the Rules of Appellate

Procedure to track the progress of a client’s appeal, keep apprised of crucial dates and, if

necessary, secure a timely extension under Rule 4(a)(5)(A), although counsel in Lewis failed to

realize that his client’s notice of appeal was untimely until after the time for seeking an extension

had passed, and yet managed to secure equitable relief under Rule 60(b)(1). See Lewis, 987 F.3d

at 394-96. How much more deserving of an equitable outcome is the petitioner here, self-

described as functionally illiterate but clearly committed to pursuing her remedies in court, as

shown by her diligence at each step of a long and sometimes convoluted path of litigation, most

of it accomplished without the benefit of counsel.

In reversing the order denying Tanner’s Rule 60(b) motion, we emphasize that on remand

the district court will be granting relief from judgment “to revive a lost right of appeal,” Lewis,

987 F.3d at 396, and not granting an extension of time under Rule 4(a)(5). The court is directed

to vacate the judgment, entered on November 8, 2005, that denied Tanner’s petition for a writ of

habeas corpus and to re-enter the judgment, thereby starting anew the 30-day period under Rule

4(a)(1)(A) in which to file a notice of appeal. Given Tanner’s continued incarceration, a timely

notice that she wishes to renew her original notice of appeal will suffice to re-establish

jurisdiction.

CONCLUSION

For the reasons set out above, we REVERSE the judgment of the district court and

REMAND for further proceedings consistent with this opinion.

No. 12-2114 Tanner v. Yukins Page 14

_________________

DISSENT

_________________

JULIA SMITH GIBBONS, Circuit Judge, dissenting. Because I believe that the majority

opinion misconstrues Supreme Court precedent and misapplies the required standard of review, I

respectfully dissent.

I.

With its decision in Bowles v. Russell, 551 U.S. 205 (2007), the Supreme Court “changed

the legal landscape for Rule 60(b) motions.” In re Sealed Case, 624 F.3d 482, 486 (D.C. Cir.

2010). In doing so, the Court used unmistakably broad language: “[T]he time limits for filing a

notice of appeal are jurisdictional in nature” and the courts “ha[ve] no authority to create

equitable exceptions to jurisdictional requirements.” See Bowles, 551 U.S. at 206, 214. That

decides the case before us: the district court had no authority under Rule 60(b)(6) to reissue its

judgment, and its opinion should be affirmed.

The majority attempts to distinguish Bowles and demonstrate that this Court’s decision in

Lewis v. Alexander, 987 F.2d 392 (6th Cir. 1993), still controls. The asserted distinction hinges

on the fact that the motion at issue in Lewis was under Appellate Rule 4(a)(5)—a motion for

extension of time to file a notice of appeal—while Bowles dealt with a Rule 4(a)(6) motion,

which seeks to reopen the window of time to file an appeal. The majority extrapolates as

follows: “Unlike Bowles . . . the case before us does not involve a Rule 4(a)(6) notice problem

. . . [o]ur decision in Lewis thus controls this situation.” For the majority, the present case

involves a special situation—and remains untouched by Bowles—because the Rules’ drafters

intended Rule 60(b) to “provide[] the district court with a mechanism for accommodating

equitable considerations other than the notice problems at the heart of Rule 4(a)(6).”

But, no matter how we read the drafters’ intent, we are bound by the Supreme Court’s

reading. And in Bowles, the Court did not confine itself to Rule 4(a)(6). It did not distinguish

between time limits that derive from Rule 4(a)(6) from those that originate in Rule 4(a)(5), as in

Lewis, or Rule 4(a)(1), as in the present case. Rather, the Court’s opinion spoke broadly of “time

No. 12-2114 Tanner v. Yukins Page 15

limits for filing a notice of appeal,” see Bowles, 551 U.S. at 206, so as to encapsulate all of the

limits contained in Rule 4, a rule which “carries [28 U.S.C.] § 2107 into practice,” id. at 208. No

matter the source of the time limit within Rule 4, Bowles tells us that the limit is jurisdictional.

That leaves courts with no authority to create equitable exceptions, no matter how compelling

the circumstances.

The majority looks to our sister circuits, but case law from elsewhere in fact weighs

against the majority’s attempt to artificially cabin Bowles. In In re Sealed Case, a unanimous

panel of the D.C. Circuit explained at length why Bowles prohibits a litigant from using Rule

60(b) to avoid Rule 4(a)’s time limits. 624 F.3d at 486. Noting the “unequivocal and

uncompromising terms” in which the Supreme Court spoke, the panel explained that courts in

the post-Bowles legal landscape “lack[] power to carve out equitable exceptions to jurisdictional

statutory requirements,” and that Rule 60(b) did nothing to confer such power. See id.

The vast majority of the other circuits have held likewise. The Second Circuit refused to

review an order denying a Rule 60(b)(6) motion because “[c]ompliance with Rule 4(a) is

‘mandatory and jurisdictional.’” DiGrolamo v. United States, 279 F. App’x 37, 38 (2d Cir.

2008) (per curiam) (alteration in original) (quoting Williams v. KFC Nat’l Mgmt. Co., 391 F.3d

411, 415 (2d Cir. 2004)). The Third Circuit, in Baker v. United States, 670 F.3d 448, 456 (3d

Cir. 2012), stated unequivocally that the time limit in Rule 4(a)(1) is “jurisdictional[] and . . . not

subject to equitable modification.” In White v. Jones, 408 F. App’x 293, 295 (11th Cir. 2011),

the Eleventh Circuit expressed serious doubts, in light of Bowles, that a litigant could “somehow

. . . file a Rule 60(b) motion to restart the appeal clock.”

The majority tries but fails to undermine some of this authority. In Perez v. Stephens,

745 F.3d 174, 177–78 (5th Cir. 2014), the Fifth Circuit held that a petitioner could not use a Rule

60(b)(6) motion to circumvent Rule 4(a)(5)’s time limit. The majority finds Perez unpersuasive

because it “did not involve the type of unconstitutional conduct by a state actor that is at issue in

this case.” That is beside the point. The Supreme Court has made clear that, no matter what the

conduct at issue and no matter why an appellate court may wish to create an equitable exception,

an appellate court is not free to do so under any circumstances. The Fifth Circuit held true to this

mandate.

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In the face of this significant contrary authority, the majority cites just one case that

provides actual support for its position. Mackey v. Hoffman, 682 F.3d 1247 (9th Cir. 2012)

focuses on the differences between Rule 4(a)(6) and other portions of Rule 4(a) in order to justify

departure from Bowles. It is unsurprising that this reasoning—unpersuasive for the reasons

discussed—has been firmly rejected by the overwhelming majority of circuits.

Bowles gives us no license to grant any equitable exceptions to the time limits in Rule 4.

I dissent from the majority’s attempt to read holes in the Supreme Court’s clear ruling where

none exist.

II.

Even if we had the power to grant an exception for “extraordinary circumstances,” I

would hold that no such circumstances exist here and would affirm the district court’s denial of

the Rule 60(b)(6) motion.

As the majority acknowledges, our review of the district court’s decision is for abuse of

discretion, see Thompson v. Bell, 580 F.3d 423, 442 (6th Cir. 2009), which exists when the

district court “applies the wrong legal standard, misapplies the correct legal standard when

reaching a conclusion, or makes a clear error of judgment,” Randleman v. Fidelity Nat’l Title Ins.

Co., 646 F.3d 347, 351 (6th Cir. 2011) (internal quotation marks omitted). The district court did

none of these things in reaching its conclusion, and Tanner did not meet the especially high bar

that litigants must meet in order to prevail under Rule 60(b). “[R]elief under Rule 60(b) is

circumscribed by public policy favoring the finality of judgments and [the] termination of

litigation,” Blue Diamond Coal Co. v. Trs. of UMBA Combined Benefit Fund, 249 F.3d 519, 524

(6th Cir. 2001) (internal quotation marks omitted), especially under Rule 60(b), “which applies

only in exceptional or extraordinary circumstances which are not addressed by the first five

numbered clauses of the Rule.” Id. (internal quotation marks omitted). “Such circumstances

will rarely occur in the habeas context.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).

The district court properly applied Rule 60(b) and did not make a clear error in

adjudicating Tanner’s claim. The district court explained its decision as follows:

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While [Tanner] has shown that extraordinary circumstances outside of her

control, i.e. the unconstitutional actions of prison officials, prevented her from

timely filing her notice of appeal, she has offered no explanation as to why she

was unable to properly file a motion for an extension of time in which to file her

notice of appeal as provided by Federal Rule of Appellate Procedure 4(a)(5).

Tanner v. Yukins, No. 04–CV–71155, 2012 WL 3109407, at *3 (E.D. Mich. July 31,

2012).

Tanner had until January 7, 2006, to file a motion for an extension of time, and the lock-

down ended on December 8, 2005. She therefore had a period of time—after the

unconstitutional conduct had ended—during which she could have filed. The district court did

not abuse its discretion in deciding that the circumstances that existed during that time, resulting

in Tanner’s missing the deadline, were not extraordinary. The majority focuses on the district

court’s failure to notify Tanner that her notice of appeal was untimely, holding that this justifies

relief for a litigant who is “functionally illiterate but clearly committed to pursuing her remedies

in court.” But the district court did not abuse its discretion in holding otherwise.

In fact, this Court’s precedents in an analogous area lend support to the district court’s

conclusion. In the context of equitable tolling of the one-year deadline for filing a petition for

habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

28 U.S.C. § 2244(d)(1), this Court has held that combinations of illiteracy, pro se status, lack of

access to legal materials, ignorance of the law, and reliance on legal assistance from others do

not amount to extraordinary circumstances. See, e.g., Keeling v. Warden, Lebanon Corr. Inst.,

673 F.3d 452, 464 (6th Cir. 2012) (“[W]e note that Keeling’s pro se status and lack of knowledge

of the law are not sufficient to constitute an extraordinary circumstance.”); Hall v. Warden,

Lebanon Corr. Inst., 662 F.3d 745, 750–52 (6th Cir. 2011) (stating that a combination of a

prisoner’s pro se status, limited law-library access, and inability to access trial transcripts did not

amount to an extraordinary circumstance); Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002)

(finding that a petitioner is not entitled to equitable tolling on the basis of his ignorance of the

law and legal process, his lack of education, his functional illiteracy, or his reliance on prison

paralegals).

No. 12-2114 Tanner v. Yukins Page 18

The district court properly applied the law on Rule 60(b) relief, permitting us to disturb

its decision only if we detect “a clear error of judgment.” Randleman, 646 F.3d at 351 (internal

quotation marks omitted). The district court did not commit such an error in deciding that—

though the circumstances preventing Tanner from filing a timely notice of appeal were

extraordinary and troubling—the circumstances surrounding the late filing of the motion to

extend time did not give rise to the type of “unusual and extreme situation” that the law requires.

Olle v. Henry Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990). The district court did not,

therefore, abuse its discretion.

III.

For the foregoing reasons, I would affirm the district court’s decision denying Tanner’s

motion.