Wesley Kingsbury v. United States, 900 F.3d 1147

Wesley Kingsbury pleaded guilty to fraud-related federal charges and was sentenced to 78 months.
He filed a pro se 28 U.S.C. § 2255 motion seeking to vacate his plea and sentence; the district court denied the motion and declined a certificate of appealability but did not file a separate document labeled as judgment under Fed. R. Civ. P. 58.
Kingsbury filed a pro se notice of appeal 64 days after the district court’s order denying his § 2255 motion and requested a certificate of appealability.
The timeliness of the notice turned on whether Rule 58’s separate-document requirement applies to § 2255 proceedings, because Fed. R. App. P. 4(a) ties the appeal clock to entry of judgment under Rule 58.
The Ninth Circuit, noting circuit split and that jurisdictional timing is its own obligation to decide, held that Rule 58 applies to § 2255 proceedings; when no separate document is filed judgment enters automatically 150 days after the order, so an appellant has up to 210 days from the order to file when the United States is a party.
Because no separate document was filed here and Kingsbury’s notice was filed within those 150 days, his notice was timely and the court has jurisdiction; the court granted in part a certificate of appealability and set briefing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Fed. R. Civ. P. 58’s separate-document requirement applies to § 2255 proceedings	Rule 58 applies; appeal time should run from entry of a separate judgment (or automatic entry at 150 days), so Kingsbury’s notice was timely	Government agreed Rule 58 applies in briefing, but the court independently must resolve jurisdictional timing	Rule 58 applies to § 2255 proceedings; if no separate document is filed judgment enters automatically 150 days after the order, extending the appeal window accordingly
Whether Kingsbury’s notice of appeal was timely	Notice filed 64 days after the order was within the Rule 58/Rule 4(a) period because judgment had not yet been entered as a separate document	If Rule 58 did not apply, the 60-day clock ran from the order and the notice would be untimely	Because Rule 58 applies and no separate document was filed, judgment entered automatically at 150 days; Kingsbury’s notice was timely

United States v. Fiorelli, 337 F.3d 282 (3d Cir.) (Rule 58 applies to § 2255 appeals)
United States v. Johnson, 254 F.3d 279 (D.C. Cir.) (discussing Rule 58 timing and § 2255 appeals)
Gillis v. United States, 729 F.3d 641 (6th Cir.) (applying Rule 58 to § 2255 proceedings)
Jeffries v. United States, 721 F.3d 1008 (8th Cir.) (holding Rule 58 governs § 2255 appeal timing)
Hayman v. United States, 342 U.S. 205 (Supreme Court) (historical guidance on habeas appellate practice)
FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269 (U.S. Sup. Ct.) (treatment of premature notices under Fed. R. App. P. 4(a)(2))
Bowles v. Russell, 551 U.S. 205 (U.S. Sup. Ct.) (appeal deadlines are jurisdictional)