holding that the 120-day time period in the 1983 version of Rule 35(b) [wa]s jurisdictional
How later courts described this case
- holding that the 120-day time period in the 1983 version of Rule 35(b) [wa]s jurisdictional
- "judge’s decision would be essentially unreviewable”
Written by the judges who cited it.
The opinion
CUDAHY, Circuit Judge,
dissenting:
What we have here is an attempt by the federal courts to deal with a badly drafted rule. 1 On the one hand, to ignore the literal language of the rule will allow federal judges to second-guess parole boards for a longer period of time than they could under a literal interpretation of the rule. Although I’m not aware that that is a significant problem, it is the primary consideration appealed to by the majority, and I concede that such second-guessing would be a bad thing. In any event, to ignore the literal language is to legislate judicially, and that too is a bad thing.
On the other hand, it is hard to believe that the “reasonable-time” rule arises out of either a desire so to legislate, or a desire to allow federal judges to defeat parole boards. More likely it arises out of the unworkability of the rule as read literally. As far as I can tell, the rule is very nearly unique; if read literally, it would mean that although a motion had been timely filed, the jurisdiction of the court to act upon it would disappear — through no fault of the movant’s — after 120 days. When is such a motion timely filed? The answer this court has now given is that this will vary from case to case; a motion filed within ten days will not be timely if through oversight it is not acted upon within 120 days.
If we are determined to give the rule a literal reading, we are obliged, I think, to do some legislating of our own. In addition to cautioning prisoners that we have dropped our more permissive attitude, we ought to determine a limit within which the prisoner can be sure that his motion will not be rejected as untimely; and we ought to require district court judges to consider motions timely filed before the 120 days are up. We might say that the prisoner has sixty days to file, for example, and that the district courts must consider motions filed within the sixty days before the 120 days are up; or we might give the prisoner 90 days to file.
Since the majority has not recognized the difficulties in the literal reading, and especially since it has not undertaken to “legislate” to the extent required by the position it has taken, I must respectfully dissent.
. As footnote 2 to the majority opinion points out the Supreme Court has revised the rule, effective August 1, 1985, to clearly incorporate the point of view advocated in this dissent.