BRETT KIMBERLIN, PETITIONER V. UNITED STATES OF AMERICA No. 90-5308 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States In Opposition OPINION BELOW The court of appeals' opinion, Pet. App. a2-a6, is reported at 898 F.2d 1262. JURISDICTION The judgment of the court of appeals was entered on March 28, 1990. A petition for rehearing was denied on April 25, 1990. Pet. App. a6-a7. The petition for a writ of certiorari was filed on July 24, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the rule of Houston v. Lack, 487 U.S. 266 (1988) -- that the timeliness of an unrepresented prisoner's notice of appeal is measured from the date it is delivered to prison authorities -- applies to a prisoner who is represented by counsel but chooses to act pro se in filing his notice of appeal. 2. Whether the district court abused its discretion in denying petitioner an extension of time in which to file his notice of appeal. STATEMENT 1. In 1981, following a jury trial in the United States District Court for the Southern District of Indiana, petitioner was convicted of possessing unregistered firearms (eight counts), in violation of 26 U. S.C. 5861(d); manufacturing destructive devices (eight counts), in violation of 26 U.S.C. 5861(f); causing malicious damage by explosive to the property of an entity receiving federal financial assistance (three counts), in violation of 18 U.S.C. 844(f); and damaging property in interstate commerce by explosive, in violation of 18 U.S.C. 844(f). He was sentenced to a total of 50 years' imprisonment. The court of appeals affirmed, United States v. Kimberlin, 805 F.2d 210 (7th Cir. 1986), and this Court denied certiorari, 483 U.S. 1023 (1987). 2. On October 26, 1987, petitioner moved the district court to reduce his sentence under the version of Federal Rule of Criminal Procedure 35(b) applicable to pre-Sentencing Guidelines cases. Pet. App. a18 (notation). Petitioner was represented by counsel Robert Kammen of Indianapolis and counsel Donald Morano of Chicago in connection with his Rule 35 motion. /1/ The district court denied that motion by order dated January 15, 1988, and mailed copies of the order to cunsel Morano and Kammen. Under Federal Rules of Appellate Procedure 3(a) and 4(b), petitioner had until Monday, January 25, to file a notice of appeal with the clerk of the district court. (The Rules provide that a notice of appeal is considered filed when received by the clerk, not when it is mailed. See Fed. R. App. P. 25(a).) Petitioner mailed a notice of appeal from prison on January 24, stating therein that counsel had not received the order appealed from until January 23. Pet. App. a9. The district court received petitioner's notice of appeal on January 28, three days out of time. Ibid. On February 1, 1988, petitioner mailed a pro se "Motion for Nunc Pro Tunc Order Granting Additonal Time in Which To File Notice of Appeal," seeking a three-day enlargement of time to allow the original notice of appeal to be timely filed; that motion was received by the clerk on February 8. Pet. App. a10-a11. In that motion, petitioner restated that counsel had not received the order appealed from until January 23, which explained why petitioner placed his notice of appeal in the mail on January 24, with the resultant delay until January 28 for the clerk to receive the notice of appeal. On March 15, 1988, the district court denied the motion for an enlargement of time. Pet. App. a12-a13. It rejected, as inadequate to show good cause for the untimely filing, petitioner's unverified personal statement that his counsel had not received the order until January 23. The district court mailed copies of that order to counsel Morano and Kammen. Pet. App. a13. On March 21, 1988, Morano filed a motion for reconsideration on behalf of petitioner, including counsel's verification that he had received the January 15 order on January 23. Pet. App. a14. By notation on the motion for reconsideration, the district court denied the motion, stating: "If consel received order on January 23, he could have mailed his notice of appeal timely." Pet. App. a14, a15. On March 30, 1988, Morano filed a notice of appeal on petitioner's behalf from the district court's orders denying the motions for reconsideration and enlargement of time. Pet. App. a16. 3. The court of appeals initially dismissed petitioner's appeal for want of jurisdiction. Soon after judgment was entered, however, this Court announced its decision in Houston v. Lack, 487 U.S. 266 (1988). In that case, the Court held that the timeliness of an unrepresented prisoner's notice of appeal is measured from the date the notice of appeal is delivered to prison authorities, not from the date it is received by the clerk of court. Petitioner sought a remand for reconsideration in light of Lack, and the Solicitor General acquiesced in that disposition. This Court granted the pending petition, vacated the judgment, and remanded to the court of appeals for further consideration in light of Lack. Pet. App. a1. 4. On remand, the court of appeals unanimously affirmed the district court's denial of an extension of time within which to file a notice of appeal from the January 15 order and dismissed the appeal as not timely filed. To begin with, the court of appeals held that petitioner was represented by counsel in connection with the Rule 35 motion, and so did not come within the class of unrepresented pro se prisoners who benefit from the rule in Houston v. Lack, 487 U.S. 266. Pet. App. a5-a6. Because petitioner was represented by counsel, the court of appeals held that petitioner's notice of appeal had to be received by the clerk on or before January 25 to be timely filed. /2/ Applying an abuse-of-discretion standard of review, the court of appeals then upheld the district court's denial of the motion for enlargement of time. It accepted the representation that counsel Morano had received the order to be appealed from on January 23 (although it speculated that counsel Kammen -- located in Indianapolis where the district court sat -- may well have received the order some time earlier). Even so, the court of appeals ruled that Morano could have arranged for Kammen to file the notice of appeal by hand on Monday, January 25. The court ruled that Morano's decision to allow petitioner to mail the notice of appeal at the eleventh hour was not "excusable neglect" of the sort that authorizes a court to grant an enlargement of time under Rule 4(b). /3/ Pet. App. a4. ARGUMENT 1. Petitioner argues that the court of appeals' ruling is inconsistent with this Court's rulings in Houston v. Lack, 487 U.S. 266 (1988), and Fallen v. United States, 378 U.S. 139 (1964), that a prisoner unrepresented by counsel is entitled to have his notice of appeal deemed filed on the day the notice is delivered to prison authorities. Pet. 9-12. Petitioner states that he was not represented by counsel on appeal because Morano withdrew as counsel during a telephone conversation with petitioner on Sunday, January 24, 1988. Pet. 10. In Lack and Fallen, this Court interpreted the Federal Rules of Appellate Procedure to designate prison authorities to be in effect the clerk of the court for purposes of determining the timeliness of filings by prisoners unrepresented by counsel. As the court of appeals explained, both the holding and reasoning of those cases hinges on the peculiar predicament of unrepresented prisoners who have no independent access to the court clerk; a pro se prisoner has no opportunity to arrange for by-hand filing or other expedited methods available to prisoners represented by counsel. Pet. App. a5; see Houston v. Lack, 487 U.S. at 271; Fallen v. United States, 378 U.S. at 144 (Stewart, J., concurring). Thus, there is no merit to petitioner's contention in the court of appeals that the rule of Lack and Fallen applies to all prisoners who file papers pro se -- regardless of whether they are represented by counsel at the time. Changing tack in this Court, petitioner now claims that he should be allowed to invoke the rule of Lack and Fallen because counsel Morano withdrew as his counsel on January 24, the day before the notice of appeal was due to be filed. Petitioner's contention that his counsel withdrew, however, is not supported by the facts of record in this case. Petitioner and his counsel had numerous opportunities to articulate this factual claim to the district court: in the original notice of appeal, in the motion for enlargement of time, in the motion for reconsideration, and in the affidavit of counsel supporting the motion for reconsideration. In none of those instances did petitioner or counsel hint that petitioner was actually unrepresented at the time the notice of appeal was to be filed. To the contrary, the record on which the court of appeals ruled does not support petitioner's claim and the rulings of the district court and court of appeals both presuppose that petitioner was represented by counsel at the time his notice of appeal was untimely filed. See Pet. App. a5 (noting "the fact that (petitioner) is represented by two lawyers"); pp. 3-4, supra (district court mailed orders to petitoner's counsel, not petitioner). 2. Petitioner also argues that this Court should review the district court's discretionary decision to deny petitioner's motion for an enlargement of time. Pet. 12-14. Petitioner does not dispute the standard of review applied by the court of appeals -- i.e., whether the district court abused its discretion in determining that "excusable neglect" did not excuse his counsel's failure to timely file a notice of appeal. See Fed. R. App. P. 4(b). Petitioner's claim therefore reduces to a challenge to the application of the abuse-of-discretion standard to the facts of this case. That claim does not merit further review. The district court did not abuse its discretion in denying an extension of time, because Morano could have timely filed the notice of appeal simply by having Kammen deliver the notice by hand. /4/ Because petitioner was represented by counsel at the time, petitioner must bear the consequences of his counsel's failure to perfect a timely filing. Even if the district court abused its discretion in this case, however, th fact-specific issues surrounding the reasons why petitioner's notice of appeal was not timely filed do not warrant review by this Court. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General RICHARD A. FRIEDMAN Attorney OCTOBER 1990 /1/ Neither the appendix to the petition nor the appendix to petitioner's brief in the court of appeals included the original Rule 35(b) motion, which was filed under seal. We have been unable to find a copy of the motion either in the files of the U.S. Attorney or in those of the district court. However, petitioner's "Supplemental In-Camera Filing in Support of Brett Kimberlin's Rule 35(b) Motion To Reduce Sentence," which was filed December 18, 1987, identifies Morano and Kammen as petitioner's attorneys in connection with the motion. See App., infra, at A2. In addition, the record shows that counsel Kammen filed an appearance "for the purpose of filing and receipt of papers" in connection with the Rule 35(b) motion. C.A. App. 2. /2/ The court considered the initial (untimely) notice of appeal from the January 15 order sufficient to present the timeliness of the appeal, and therefore dismissed what it considered to be the redundant appeal from the denial of reconsideration and the denial of enlargement of time. Pet. App. a4. /3/ The court of appeals rejected Morano's explanation -- "not hinted at in the district court" -- that Morano wanted petitioner to file the notice of appeal so that Morano could avoid being compelled to serve as uncompensated appellate counsel. Pet. App. a4. The court of appeals observed that filing a notice of appeal does not compel counsel to represent an appellant on appeal and that counsel in the district court has a duty to file the notice of appeal even if he does not expect to represent the appellant on appeal. Pet. App. a4-a5. /4/ The court of appeals apparently construed the district court's cryptic notation of counsel's ability to "mail" the notice of appeal in a timely fashion to reflect the district court's belief that counsel could have "filed" the notice in a timely fashion. See Pet. App. a4. APPENDIX