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finding a combined filing was a sufficient notice of appeal where the filing was signed by the pro se plaintiff/appellant, the order in question was adequately discussed, and it was clear that the Second Circuit was the court to which an appeal would lie
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Docket No. 96-3094.
Submitted: October 9, 1996.
Decided: December 18, 1996. Amended January 30, 1997.
Christopher Barrett, Minersville, PA, pro se.
Petition for a writ of mandamus directing the District Court for the Eastern District of New York (Ross, J.) to rule upon petitioner's motion to vacate his guilty plea, which the district court had already denied by handwritten endorsement order. We deny the petition and direct the district court to construe petitioner's Motion for Clarification as a notice of appeal.
Christopher Barrett, pro se, petitions for a writ of mandamus directing the District Court for the Eastern District of New York (Allyne R. Ross, J.) to rule upon petitioner's motion to vacate his guilty plea pursuant to 28 U.S.C. §(s) 2255. The district court had already dismissed petitioner's motion and thus the petition is moot; however, we direct the district court to construe petitioner's Motion for Clarification below as a notice of appeal.
On September 6, 1995, Barrett pleaded guilty to aiding and abetting Joseph Scopo in using and carrying a firearm, in violation of 18 U.S.C. §(s) 924(c), during and in relation to a conspiracy to murder Gregory Scarpa. Subsequently, the Supreme Court held in Bailey v. United States, 116 S.Ct. 501 (1995), that Section(s) 924(c)'s "use" provision must be defined more narrowly than we previously had held it should be. See United States v. Vasquez, 85 F.3d 59, 60 (2d Cir. 1996).
In March 1996, Barrett moved in the District Court for the Eastern District of New York pursuant to 28 U.S.C. §(s) 2255 to vacate his guilty plea on the ground that, in light of Bailey, there was an insufficient factual basis for his plea. See Fed. R. Crim. P. 11(f). On June 7, 1996, Judge Ross issued an order to show cause directing the government to respond to the motion within twenty days, and allowing Barrett twenty days thereafter to reply.
On June 20, the government responded by letter brief. Four days later, well before Barrett's time in which to reply had elapsed, the district court denied Barrett's motion by writing the following by hand across the upper right corner of the government's letter brief:
Because defendant's allocution at his guilty plea suffices to establish the essential elements of aiding and abetting the use and carrying of a gun by Joe Scopo, Jr. in connection with Scopo's conspiracy to murder Greg Scarpa to maintain or enhance the position of Scopo's father in a racketeering enterprise, his petition pursuant to 28 U.S.C. §(s) 2255 is denied.
So ordered.
/s/ Allyne Ross, U.S.D.J.
Judge Ross's order was not docketed until July 3. Meanwhile, on July 1 Barrett had submitted his reply to the government's response to his motion, pursuant to the schedule set forth in the show cause order. On July 9, the district court wrote by hand across the top of Barrett's reply papers that the motion "was previously dismissed for the reasons set forth in the court's prior order." In late July, Barrett filed what he styled a "Motion for Clarification by Chief Judge Charles Sifton." In the motion and an accompanying "affidavit letter," Barrett indicated that he filed the motion because he was "confused" by the handwritten endorsements and could only conclude that he was "not receiving any formal responses" to his Section(s) 2255 motion. Barrett expressed frustration that the absence of a "formal denial or responses [sic]" was preventing him from appealing any ruling on his Section(s) 2255 motion, and wrote that "[t]his is a notice of appeal in the event the Honorable Court is of the opinion that appealing is the appropriate action." This motion was transferred to Judge Ross, who denied it by yet another endorsement order written by hand across the top of the moving papers.
Barrett filed the instant petition with this court on September 9. In addition to seeking a writ of mandamus directing the district court to rule upon his Section(s) 2255 motion, Barrett's petition indicates that he was confused by the district court's informal endorsement orders and states that "[b]y not receiving any notification from the Court with an official notification, it is not known if the appeal time is triggered by the `note' decision. . . . This Petitioner submits this document to the Appeals Court for a de nova [sic] review of this situation since he cannot receive any formal response from the district court." We deny Barrett's mandamus petition as moot because Judge Ross disposed of Barrett's motion by her first endorsement order entered July 3, 1996. We are disturbed, however, by the district court's method of handling Barrett's Section(s) 2255 petition. Although handwritten endorsement orders may be an expeditious method of disposing of a variety of minor interlocutory matters, they are an inappropriate vehicle for deciding a Section(s) 2255 petition.
First, "[w]e must continuously bear in mind that to perform its high function in the best way justice must satisfy the appearance of justice," Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988) (internal quotation marks omitted), lest we undermine public confidence in the integrity of the judicial process. We disapprove of the use of a handwritten endorsement order for entry of a final ruling because it fails to satisfy this appearance. Final disposition of a petition by a handwritten order scrawled across a litigant's supporting papers carries an air of indifference unbefitting a district court. This veneer of indifference suggests that the disposition was hasty and lacked the deliberation expected of a final judgment. The brevity of such orders may also lead the district judge to make findings too cursory to enable intelligent appellate review. In this case, the appearance of injustice was emphasized by the district court's entry of its order before receiving the reply papers which the show cause order had expressly contemplated.
Final disposition by an endorsement order also is inappropriate because, as here, the order and its consequences may not adequately be understood by the parties. That risk is greater when a party is proceeding pro se, in which circumstance the district court should be careful to ensure that it communicates its actions clearly. Here, the brevity and informality of the handwritten orders risked prejudicing petitioner by failing to apprise him that his claim had been disposed of and was ripe for appeal. In particular, when petitioner filed his third set of papers, predicated on the ambiguity of a handwritten order, the district court's insistence on disposing of them by repeating the very conduct of which the Motion complained, rather than by a more formal order, could only perpetuate Barrett's confusion.
Although the district court's refusal to clarify its order might have significantly prejudiced Barrett by leading him to consume the remaining time in which to appeal with the instant petition, see Fed. R. App. P. 4(a)(1) (appeal in case to which United States is a party must be filed within 60 days after entry of order appealed from), Barrett has not lost the opportunity to appeal. The district court should have treated his Motion for Clarification as a notice of appeal, as expressly requested by Barrett in those papers. Rule 3 of the Federal Rules of Appellate Procedure provides in relevant part:
A notice of appeal must specify the party or parties taking the appeal by naming each appellant in either the caption or the body of the notice of appeal. . . . A notice of appeal also must designate the judgment, order, or part thereof appealed from, and must name the court to which the appeal is taken. An appeal will not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.
F.R.A.P. 3(c). As the last-quoted sentence of Rule 3 indicates, the requirement of timely notice of appeal will be satisfied "if the litigant's action is the functional equivalent of what the rule requires," Smith v. Barry, 502 U.S. 244, 248 (1992), and we take "a liberal view of papers filed by indigent and incarcerated defendants, as equivalents of notices of appeal." Coppedge v. United States, 369 U.S. 438, 442 n. 5 (1962); see also Grune v. Coughlin, 913 F.2d 41, 43 (2d Cir. 1990). A pro se party's filing will suffice as a notice of appeal so long as it "evinces an intent to appeal an order or judgment of the district court and appellee has not been prejudiced or misled by the notice." Id.
Under this liberal standard, Barrett's Motion for Clarification qualifies as a notice of appeal. His supporting affidavit expressly states that "[t]his is a notice of appeal in the event the Honorable Court is of the opinion that appealing is the appropriate action," and thus clearly evinces an intent to appeal, notwithstanding that the notice was combined with the motion in one document. See Hatfield v. Board of County Comm'rs, 52 F.3d 858, 861-62 (10th Cir. 1995) (notice of appeal not invalidated "by its presentation in the same document as a separate motion"); see also Smith, 502 U.S. at 249 (appellate brief may serve as notice of appeal).
Petitioner's motion also adequately "specif[ies] the parties taking the appeal, designate[s] the judgment appealed from, and identif[ies] the court to which the appeal is taken," Nichols v. Board of Trustees of Asbestos Workers Local 24 Pension Plan, 835 F.2d 881, 889 (D.C. Cir. 1987), to "accomplish the dual objectives of (1) notifying the court and (2) notifying opposing counsel of the taking of an appeal." Van Wyck El Paso Inv., Inc. v. Dollar Rent-A-Car Systems, 719 F.2d 806, 807 (5th Cir. 1983) (per curiam). First, Rule 3(c) itself provides that "[a] notice of appeal filed pro se is filed on behalf of the party signing the notice," and thus the pro se motion adequately identifies the party taking the appeal. Second, designation of the judgment appealed from is sufficient "as long as the intent to appeal from a specific judgment can be fairly inferred." Matarese v. LeFevre, 801 F.2d 98, 105 (2d Cir. 1986) (internal quotation marks omitted). Barrett's Motion for Clarification makes reference only to his Section(s) 2255 motion and Judge Ross's purported failure to rule upon it, and thus it is clear that any appeal would be from Judge Ross's disposition of that motion. See Krause v. Bennett, 887 F.2d 362, 367 n. 2 (2d Cir. 1989). Finally, although Barrett failed to specify this court as that to which he was taking his appeal, review of the district court's order could be had only in this court. See 28 U.S.C. §(s) 2255, 2253. The United States Attorney is fully aware that appeals from the Eastern District of New York lie to this court, and thus was on notice regarding the court to which appeal was taken. See Grune, 913 F.2d at 43; Graves v. General Ins. Corp., 381 F.2d 517, 520 (10th Cir. 1967) (notice of appeal was sufficient even though it erroneously recited court to which appeal was being taken; "[t]he United States Court of Appeals for the Tenth Circuit is the only court to which an appeal could have been taken.") Accordingly, we conclude that the Motion for Clarification sufficed as a notice of appeal, and that the district court should have treated it as such.
Leave to proceed in forma pauperis is granted and the petition for a writ of mandamus is denied. The district court is directed to construe the Motion for Clarification as a notice of appeal filed July 26, 1996.