53 F.4th 397
6th Cir.2022Background
- Joseph Reho filed a 28 U.S.C. § 2255 motion; the district court denied relief and entered judgment.
- Eighty-three days after judgment, Reho (pro se) filed a document requesting an extension of time to file a certificate of appealability (COA) and to proceed in forma pauperis, and asking for counsel. The district court docketed the filing as a notice of appeal.
- If treated as a notice of appeal, the filing was untimely (about three weeks late) and the appellate court would lack jurisdiction.
- The Sixth Circuit, construing pro se filings liberally, examined whether Reho’s filing should instead be treated as a motion for extension of time to file a notice of appeal under 28 U.S.C. § 2107(c) and Fed. R. App. P. 4(a)(5)(A).
- The court concluded Reho’s filing, which repeatedly sought an extension and explained his delay, should be treated as a motion for extension of time rather than a simple late notice of appeal.
- The Sixth Circuit remanded to the district court to decide whether Reho has shown excusable neglect or good cause to warrant an extension; if granted, Reho must separately file a notice of appeal before the Sixth Circuit will consider a COA application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Characterization of the filing | Reho repeatedly requested an extension to file a COA/notice and IFP status; asked for counsel and explained delay | District court treated the filing as a notice of appeal (untimely) | Court construed the pro se filing as a motion for extension of time and not merely a late notice of appeal |
| Jurisdiction over late appeal | Seeks extension to preserve right to appeal | A notice filed after the 60-day rule is jurisdictionally barred; deadline cannot be waived on appeal | If treated as a notice, appeal is untimely and jurisdiction is lacking; but treating it as a timely motion for extension avoids immediate jurisdictional dismissal and permits district-court review |
| Standard for extending appeal time | Reho presented reasons for delay and requested relief | Extension requires showing excusable neglect or good cause under §2107(c); district court must decide | Remanded for the district court to determine whether Reho has shown excusable neglect or good cause; if granted, Reho must then file a separate notice of appeal |
Key Cases Cited
- Ultimate Appliance CC v. Kirby Co., 601 F.3d 414 (6th Cir. 2010) (timely filing requirement for appeals is jurisdictional)
- Franklin v. Rose, 765 F.2d 82 (6th Cir. 1985) (pro se habeas filings are construed liberally)
- Johnson v. Bell, 605 F.3d 333 (6th Cir. 2010) (construing notices as COA applications for pro se litigants)
- Isert v. Ford Motor Co., 461 F.3d 756 (6th Cir. 2006) (construing motions for extension as equivalent to notices in some contexts)
- Pryor v. Marshall, 711 F.2d 63 (6th Cir. 1983) (declining to construe simple notices of appeal as extension motions)
- Martin v. Sullivan, 876 F.3d 235 (6th Cir. 2017) (refusing to treat bare notices as motions to extend or reopen)
- Young v. Kenney, 949 F.3d 996 (6th Cir. 2020) (treating notices that could reasonably be read as extension motions as such)
- Bell v. McAdory, 820 F.3d 880 (7th Cir. 2016) (remand appropriate for district court to consider extension under §2107)