387 F.

2d 324

UNITED STATES of America ex rel. Edward John

NOWAKOWSKI, Appellant,
v.
James F. MARONEY, Superintendent, State Correctional
Institution.
No. 17077.

United States Court of Appeals Third Circuit.

Dec. 28, 1967.

Before BIGGS, KALODNER and FREEDMAN, Circuit Judges.

OPINION OF THE COURT
PER CURIAM:

Pursuant to the mandate of the Supreme Court of the United States appellant's
petition for leave to appeal and to proceed in forma pauperis will be granted
and the Clerk will be directed to proceed forthwith to docket the appeal and to
file the record out of time.

We believe that in the circumstances of this case appellant's petition for

appointment of counsel should be granted and the appointment will be made in
the order which will be entered pursuant to this opinion.

In his petition appellant also sought the right to file handwritten briefs. This
request will be granted, and since his counsel may prefer to file typewritten
briefs, leave to do so will also be given.

In addition to the argument on the merits of the appeal counsel should present
to the court in their respective briefs and arguments their views on the
jurisdictional question which may exist with regard to the timeliness of the
application for and granting of the certificate of probable cause and the time of
filing of the notice of appeal.

We will order the case to be expedited so that when the briefs are filed the
Clerk will give the appeal priority of listing before a panel of the Court.

An appropriate order will be entered.

KALODNER, Circuit Judge (dissenting).

The District Court denied the appellant's petition for issuance of a writ of
habeas corpus on April 28, 1965. On May 11, 1965-- thirteen days later-- the
appellant filed in the District Court a 'Petition for rehearing, reargument and
reconsideration'. That petition was denied by the District Court on May 14,
1965. On June 14, 1965, he filed in the District Court a notice of appeal and on
the same day made application for a certificate of probable cause. The District
Court granted the certificate on June 15, 1965.

On July 19, 1965, the appellant filed in this Court a petition for leave to appeal
in forma pauperis and to file a handwritten brief. He also prayed in that petition
for appointment of counsel. We denied the petition on July 27, 1965 for the
reason that we lacked jurisdiction to entertain the appeal inasmuch as the
appellant had failed to comply with the requirement of Section 2107, Title 28
U.S.C.A. that notice of appeal be filed in the District Court within 30 days after
the denial of his petition for a writ of habeas corpus, and for the further reason
that a certificate of probable cause had not been applied for, and granted, within
30 days after the denial of his petition for the habeas corpus writ, as required by
Section 2253, Title 28 U.S.C.A.

10

We regrettably did not state the reasons for our denial of the appellant's petition
for leave to appeal in forma pauperis, etc. in our Order of July 27, 1965.1

11

On October 4, 1965, we denied the appellant's petition for reconsideration of

our Order of July 27, 1965.

12

The Supreme Court of the United States granted certiorari and in a Per Curiam
Opinion on April 10, 1967, vacated our Order for the reason that we 'erred in
denying the petitioner (appellant) the right to appeal after the District Judge had
issued a 2253 certificate of probable cause' and remanded the case 'for further
proceedings consistent with' its opinion. It must be noted parenthetically that
the Supreme Court's Per Curiam did not advert therein to the chronology of the
proceedings in the District Court, earlier here stated.

13

I would, on this remand, grant the appellant's petition for leave to proceed in

13

I would, on this remand, grant the appellant's petition for leave to proceed in
forma pauperis, docket his appeal and dismiss it for these reasons:

14

The appellant's petition for a writ of habeas corpus having been denied by the
District Court on April 28th, the appellant was required by Section 2107 to file
his notice of appeal within 30 days thereafter, and to obtain a certificate of
probable cause from either the District Court or a judge of this Court within the
stated 30-day period. The appellant did not file his notice of appeal in the
District Court until June 14th nor did he obtain a certificate of probable cause
until June 15th2 -- 47 and 48 days respectively, after the denial of this habeas
corpus petition on April 28th.

15

While it is true that the appellant on May 11th filed a petition for
reconsideration of the District Court's denial of his habeas corpus petition on
April 28th, the filing of the reconsideration petition (denied on May 14th) did
not toll the running of the statutory 30-day period for the filing of a notice of
appeal and the issuance of a certificate of probable cause under the specific
provisions of both Rule 52(b) and Rule 59(b), subsequently detailed, which
respectively require that a motion for amendment of judgment or a new trial
must be made 'not later than 10 days after entry of judgment'.

16

Section 2107, Title 28 U.S.C.A. provides, in relevant part, that 'no appeal shall
bring any judgment, order or decree in an action, suit or proceeding of a civil
nature before a court of appeals for review unless notice of appeal is filed,
within thirty days after the entry of such judgment, order or decree.'

17

Section 2253, 28 U.S.C.A., provides, in relevant part, that 'An appeal may not
be taken to the court of appeals from the final order in a habeas corpus
proceeding where the detention complained of arises out of process issued by
the State court, unless the justice or judge who rendered the order or a circuit
justice or judge issues a certificate of probable cause.'

18

Habeas corpus is a civil proceeding and as such is governed by the Federal

Rules of Civil Procedure, Rule 81(a), F.R.C.P., 28 U.S.C.A., United States ex
rel. Seals v. Wiman, 304 F.2d 53, 64 (5 Cir. 1962), cert. den. sub nom. Wiman,
Warden v. Seals, 372 U.S. 915, 83 S.Ct. 717, 9 L.Ed.2d 722 (1963).

19

Rule 73(a), F.R.C.P. in subscription to the provisions of Section 2107, also

specifies, in relevant part, that the time within which an appeal shall be taken
shall be 'within 30 days from the entry of the judgment appealed from', subject
to the proviso that the running of the time for appeal is terminated 'by a timely
motion made by any party pursuant to any of the rules hereinafter enumerated',

among them Rule 52(b), which provides that 'Upon motion of a party made not
later than 10 days after entry of judgment the court may amend its findings or
make additional findings and may amend the judgment accordingly', and Rule
59(b), which provides that 'A motion for a new trial shall be served not later
than 10 days after the entry of the judgment'.3
20

Rule 81(a)(2), F.R.C.P. further provides that 'The requirements of Title 28

U.S.C., 2253, relating to certification of probable cause in certain appeals in
habeas corpus cases remain in force'.

21

To what has been said may be added that Section 2253 and Rule 81(a)(2) are
embraced in Rule 11(3) of this Court, 'Appeals, How Taken'.

22

This Court, in United States ex rel. Carey v. Keeper of Montgomery County

Prison, 3 Cir., 202 F.2d 267 (1953), cert. den. 345 U.S. 930, 73 S.Ct. 793, 97
L.Ed. 1360, specifically held that it was 'without jurisdiction to entertain the
appeal' where the District Court denied issuance of a writ of habeas corpus on
December 1, 1952; an application for a certificate of probable cause was made
to the District Court on December 29, 1952 and denied the same day; notice of
appeal was filed in the District Court on December 30, 1952-- all within 30
days from the entry of judgment denying the writ; and two members of this
Court had granted a certificate of probable cause on January 7, 1953-- more
than 30 days after the entry of judgment.

23

In holding that under the circumstances stated-- failure to obtain a certificate of

probable cause within 30 days after the entry of judgment-- the Court was
'without jurisdiction' to entertain the appeal, we said (p. 268):

24

'In our opinion the issuance of a certificate is a condition precedent to the

perfecting of an appeal and the question is one of jurisdiction. The fact that an
application was made within the thirty day period is insufficient to confer
jurisdiction upon a court of appeals under the circumstances at bar. It was
plainly the intention of Congress to impose strict limitations upon appeals in
habeas corpus cases when the detention was by State process. The policy
involved is one for Congress and not one for the Courts. 'We conclude that we
are without jurisdiction to entertain the appeal and that the certificate of
probable cause and stay of execution were improvidently granted'.

25

In Commonwealth of Pennsylvania ex rel. Ricks v. Maroney, 3 Cir., 314 F.2d

339 (1963), cert. den. sub nom. Ricks v. Maroney, 374 U.S. 816, 83 S.Ct. 1711,
10 L.Ed.2d 1039, we held that where the time for appeal from an order of the

District Court had expired this Court could not grant a certificate of probable
cause or leave to appeal in forma pauperis. There the District Court had denied
a petition for a writ of habeas corpus on December 19, 1962 and the petition to
this Court for a certificate of probable cause and for leave to appeal in forma
pauperis was lodged with our Clerk on January 22, 1963.
26

In Zimmer v. Langlois, 331 F.2d 424 (1 Cir. 1964) where the District Court had
denied a petition for a writ of habeas corpus on February 24, 1964 and an
application for a certificate of probable cause on March 12, 1964, the First
Circuit denied an application made to it on April 4, 1964 for a certificate of
probable cause on the ground that it had been presented after the expiration of
'the 30 days for appeal' from the February 24, 1964 order of the District Court.
In doing so the Court cited its earlier decision in Ex Parte Farrell, 189 F.2d 540,
544 (1951), cert. den. sub nom. Farrell v. O'Brien, 342 U.S. 839, 72 S.Ct. 64,
96 L.Ed. 634. There, the District Court had denied a petition for a writ of
habeas corpus on March 22, 1951, and an application for a certificate of
probable cause on April 4, 1951, and motions for the issuance of certificate of
probable cause and for leave to proceed in forma pauperis were presented to the
First Circuit on May 16, 1951.

27

In denying the two motions, Chief Judge Magruder, speaking for the First
Circuit, said (189 F.2d p. 544):

28

'An appeal from an order of a United States district court dismissing a petition
for writ of habeas corpus, where the detention complained of arises out of
process issued by a state court, may not be taken to the court of appeals for
review (1) unless notice of appeal is filed within thirty days after the entry of
such order, 28 U.S.C. 2107, and (2) unless the judge who rendered the order or
a circuit justice or judge issues a certificate of probable cause, or at least unless
the issuance of such certificate is applied for, within the thirty-day period, 28
U.S.C. 2253. Following the analogy of the Matton case, supra (Matton
Steamboat Co., Inc. v. Murphy, 319 U.S. 412, 63 S.Ct. 1126, 87 L.Ed. 1483
(1943)), if such application is made to the district judge and by him denied, the
case cannot be got before the court of appeals for review unless within the
thirty-day period another application for the issuance of a certificate is
presented to a circuit judge or circuit justice, or * * * to the court of appeals
itself.'

29

Analogous here is Poe v. Gladden, 287 F.2d 249, 250-251 (9 Cir. 1961), where
the entry of judgment in a habeas corpus proceeding was made on September
28, 1959; a certificate of probable cause was issued by a circuit Judge on
November 2, 1959, and notice of appeal was filed on December 4, 1959. The

appeal was dismissed for lack of jurisdiction. The Court held that 'The
certificate of probable cause herein was improvidently entered' in view of the
fact that it was issued 'the thirty-fifth day after entry of the order of September
28, 1959', and 'The appeal is not saved by the fact that a certificate of probable
cause has been issued herein.'
30

In United States Ex rel. Geach v. Ragen, 231 F.2d 455 (7 Cir. 1956), it was
held that a certificate of probable cause could not be issued by a federal
appellate judge or court where 30 days had elapsed since the entry of the
District Court's order denying a petition for a writ of habeas corpus even
though notice of appeal had been filed within the 30-day period. In doing so the
Court said (p. 457):

31

'The application to one of the judges of this Court * * * for a certificate of

probable cause, being (made) after the thirty day appeal period, was made too
late. This Court is without power to grant the application, even if it were
otherwise thought that there had been probable cause for the appeal'.

Our order of July 27, 1965 reads as follows: 'Upon consideration of appellant's
petition for leave to proceed in forma pauperis and to file handwritten briefs;
and for appointment of counsel in the above-entitled case; It is ORDERED that
the petition be and it hereby is denied.'

The appellant did not apply to the District Court for a certificate of probable
cause until June 14th-- 47 days after the denial of his habeas corpus petition

Rule 6(b), F.R.C.P. specifically provides that a District Court 'may not extend
the time for taking any action' under Rules 59(b) and 73(a)