Louis Perez v. William Stephens, Director
784 F.3d 276
5th Cir.2015Background
- Perez was convicted and sentenced to death in Texas; his federal habeas petition was denied and a judgment entered March 27, 2012, with a 30‑day appeal window.
- Perez’s trial counsel, Sadaf Khan, received formal notice of the judgment but chose not to appeal and did not inform Perez or consulting counsel; the appeal deadline passed unfiled.
- New counsel filed multiple motions (FRAP 4(a)(5), FRAP 4(a)(6), and Fed. R. Civ. P. 60(b)(6)) on August 29, 2012; the district court granted 60(b) relief, reentered the March 2012 judgment Dec. 18, 2012, and Pérez appealed.
- This court in Perez I (Perez v. Stephens, 745 F.3d 174) vacated the district court’s 60(b) reentry, held the appeal untimely, rejected FRAP 4(a)(6) as a basis to toll the appeal in these circumstances, and dismissed for lack of jurisdiction without remanding.
- After cert. denial, Perez filed again in district court; the court (Dec. 11, 2014) reopened the appeal period under FRAP 4(a)(6), and Perez filed this appeal based on that reopening.
- The Fifth Circuit majority held the December 2014 FRAP 4(a)(6) reopening violated the mandate rule (and was substantively inapplicable), so Perez’s appeal must be dismissed for lack of jurisdiction; a dissent argued the prior 4(a)(6) discussion was dictum, counsel’s conduct amounted to abandonment, and reopening was permissible.
Issues
| Issue | Perez's Argument | Director's Argument | Held |
|---|---|---|---|
| Whether the district court could reopen the time to appeal under FRAP 4(a)(6) after this court’s prior disposition | Khan abandoned Perez so notice to counsel should not be imputed; 4(a)(6) reopening is available | Clerk gave formal notice to counsel; 4(a)(6) inapplicable where counsel received notice; jurisdictional timeliness is mandatory | Reopening under 4(a)(6) was improper: notice was received by counsel and 4(a)(6) does not apply; appeal dismissed for lack of jurisdiction |
| Whether the district court’s December 2014 order violated the mandate rule from Perez I | The Director did not appeal the 2014 order, so it should be reviewable; Perez relied on prior rulings being vacated | Perez I resolved the availability of 4(a)(6) and left nothing for the district court; the district court exceeded the mandate | The district court exceeded Perez I’s mandate by relitigating 4(a)(6); mandate rule bars the reopening |
| Whether Perez forfeited or waived the 4(a)(6) argument by not raising it earlier | As appellee in Perez I, Perez had limited incentive/opportunity and shouldn’t be strictly penalized | Perez had multiple opportunities (motions, response to motion to dismiss) and failed to press 4(a)(6); forfeiture applies | Perez forfeited the 4(a)(6) argument by repeatedly failing to raise it in timely proceedings |
| Whether attorney abandonment can overcome formal notice to counsel for FRAP 4(a)(6) purposes | Maples and equitable principles permit treating counsel’s abandonment as preventing imputation of notice | Resendiz and Bowles foreclose treating attorney negligence as abandonment for 4(a)(6); jurisdictional rules admit no equitable exception | Even assuming abandonment arguable, Bowles forecloses equitable exceptions to jurisdictional timing and Resendiz shows mere attorney negligence is not abandonment; 4(a)(6) not available |
Key Cases Cited
- Perez v. Stephens, 745 F.3d 174 (5th Cir. 2014) (vacated district court's Rule 60(b) reentry, held appeal untimely, rejected 4(a)(6) as available relief in that posture)
- Resendiz v. Dretke, 452 F.3d 356 (5th Cir. 2006) (attorney’s failure to inform client of judgment was negligent, not abandonment; notice imputed)
- Bowles v. Russell, 551 U.S. 205 (2007) (timely filing of notice of appeal is jurisdictional; courts may not create equitable exceptions to jurisdictional timing rules)
- Maples v. Thomas, 565 U.S. 266 (2012) (attorney abandonment can prevent imputation of notice under agency principles)
- Wilkens v. Johnson, 238 F.3d 328 (5th Cir. 2001) (appellate courts must consider jurisdiction sua sponte)
- United States v. McCrimmon, 443 F.3d 454 (5th Cir. 2006) (mandate rule requires district courts to implement the letter and spirit of appellate mandates)
- Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993) (principles on imputing notice to a client from counsel’s receipt)