The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 23 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-16976
Plaintiff - Appellee, D.C. Nos. 1:03-cv-06609-AWI
1:98-cr-
v. 05294-AWI-1
VICTOR LAMONT BROWN,
MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Senior District Judge, Presiding
Submitted September 17, 2015**
San Francisco, California
Before: CALLAHAN, CHRISTEN, and FRIEDLAND, Circuit Judges.
After a jury trial, Victor Brown was convicted of conspiring to traffic in
cocaine, and possession of cocaine with intent to distribute, in violation of 21
U.S.C. §§ 841(a)(1) and 853. Brown filed a timely motion to vacate or set aside
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
his conviction pursuant to 28 U.S.C. § 2255, which the district court denied on the
merits. Brown then filed a Rule 60(b) motion asking the district court to reopen
his § 2255 motion, which the district court construed as an uncertified second or
successive § 2255 motion and dismissed for lack of jurisdiction.
Brown now appeals the district court’s order denying his Rule 60(b) motion,
as well as the district court’s order denying his original § 2255 motion, seeking
review of the merits as to certain claims presented therein. We dismiss as untimely
Brown’s appeal of the district court’s order denying his § 2255 motion, and affirm
the district court’s order dismissing Brown’s Rule 60(b) motion for lack of
jurisdiction.
I. Brown’s § 2255 Appeal
This court does not have jurisdiction to review the district court’s order
denying Brown’s § 2255 motion because Brown failed to file a timely notice of
appeal (“NOA”) of that order. An appeal from a district court to a court of appeals
may be taken only by filing a timely NOA. Fed. R. App. P. 3(a); 4(a)(1). Failure
to file a timely NOA deprives the court of appeals of jurisdiction to review the
judgment. See Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257, 264 (1978). If
neither party objects to an untimely NOA, this court must raise the issue sua
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sponte. See Hostler v. Groves, 912 F.2d 1158, 1160 (9th Cir. 1990).
If, as here, the United States is a party to a civil action, a NOA must be filed
within 60 days after the entry of the judgment or order that the appellant wishes to
appeal. Fed. R. App. P. 4(a)(1)(B)(i). The commencement of the period for filing a
NOA is triggered by the proper entry of the judgment or order to be appealed in the
civil docket. Williams v. Borg, 139 F.3d 737, 739 (9th Cir. 1998); Fed. R. Civ. P.
58, 79(a). Here, the commencement of the NOA period relating to Brown’s § 2255
motion was triggered by the entry into the docket of the district court’s order
denying the § 2255 motion on April 20, 2012. A Rule 59 motion to alter or amend
the judgment, however, resets the notice-of-appeal period. Fed. R. App. P.
4(a)(4)(A)(iv). On July 11, 2012, the district court’s order denying Brown’s Rule
59(e) motion was entered into the docket, triggering the recommencement of the
NOA period. Thus, the relevant 60-day NOA period began on July 12, 2012, and
was set to expire on September 9, 2012.
On August 1, 2012, Brown delivered a motion seeking “an extension of time
to file his Certificate of Appealability” to prison officials for filing. Construing
Brown’s pro se motion liberally, as we must, we interpret this filing as a motion for
extension of time to file a NOA brought pursuant to Federal Rule of Appellate
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Procedure 4(a)(5). Rule 4(a)(5) permits a district court to extend the time to file a
NOA if a party so moves within 30 days of the expiration of the 60-day clock, but
only permits the district court to extend the deadline to 1) 30 days after the close of
the NOA period (which in this case would be October 9, 2012), or 2) 14 days after
the date when its order granting the motion to extend is entered—whichever is
later. This request for an extension cannot itself be construed as a NOA because it
did not specify the order or judgment from which Brown planned to appeal, or the
court to which an appeal would be taken. Fed. R. App. P. 3(c).1
On October 29, 2012, the district court entered an order providing Brown
until “Thursday, January 31, 2013 to file his motion for a certificate of
appealability with the Court.” But, interpreting Brown’s motion as seeking an
extension of the NOA deadline, the district court’s authority was limited to
extending the deadline to November 13, 2012, 14 days after the date the order was
entered, plus one day because the period ended on a holiday. Fed. R. App. P.
4(a)(5)(C); 26(a)(1)(C), (6)(A).
Brown does not contend that he filed an express NOA of the district court’s
1
Even if the motion for extension could be construed as a NOA, Brown’s appeal of
his § 2255 motion would fail on the merits.
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denial of his § 2255 motion before November 13, 2012, or that his motion for
extension of time should be construed as a NOA. Moreover, none of Brown’s
other filings within the NOA period provided sufficient notice under Federal Rule
of Appellate Procedure 3(c) to permit this court to construe them as an effective
NOA. See Estrada v. Scribner, 512 F.3d 1227, 1236 (9th Cir. 2008).
Because Brown did not file an express NOA of the district court’s order
denying his § 2255 motion during the NOA period, and because none of the
documents Brown filed during the NOA period satisfy Rule 3(c), this court does
not have jurisdiction over the district court’s determination of the merits of
Brown’s § 2255 motion. Accordingly, Brown’s appeal of that order must be
dismissed.
II. Brown’s Rule 60(b) Appeal
Brown contends that the district court abused its discretion when it construed
Brown’s Rule 60(b) motion as an uncertified second or successive § 2255 motion
and dismissed it for lack of jurisdiction. We affirm.
The district court correctly construed Brown’s Rule 60(b) motion as a
second or successive § 2255 motion because “an attack based on . . . habeas
counsel’s omissions,” such as that made by Brown’s Rule 60(b) motion, “does not
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go to the integrity of the proceedings, but in effect asks for a second chance to have
the merits determined favorably.” Gonzalez v. Crosby, 545 U.S. 524, 532 n.5
(2005).
Accordingly, the district court properly concluded that Brown’s Rule 60(b)
motion was a second or successive § 2255 motion, and that it had no jurisdiction to
consider it absent a certification from this court. § 2255(h). Construing this appeal
as a motion for certification of a second or successive petition, we conclude that
Brown’s Rule 60(b) motion’s is ineligible for certification because it neither
presents evidence that was unavailable to him when he filed his § 2255 motion, nor
asserts that he is entitled to relief under a new rule of constitutional law. Id.
III. Conclusion
Because Brown’s appeal of the district court order denying his § 2255
motion was untimely noticed, we DISMISS it for lack of jurisdiction. Because the
district court correctly concluded that Brown’s Rule 60(b) motion was a second or
successive habeas petition, and because that motion is ineligible for certification,
we AFFIRM the district court’s order dismissing Brown’s Rule 60(b) motion for
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lack of jurisdiction. 2
DISMISSED in part and AFFIRMED in part.
2
Because we affirm, Brown’s motion for judicial notice is DENIED.
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