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United States v. Fiorelli

July 09, 2003

UNITED STATES OF AMERICA
v.
JOSEPH FIORELLI, APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 94-cr-00146) District Judge: Hon. Clarence C. Newcomer

Before: Mckee, Smith and Cowen, Circuit Judges

The opinion of the court was delivered by: Cowen, Circuit Judge.

PRECEDENTIAL

Argued April 1, 2003

OPINION OF THE COURT

Federal prisoner Joseph Fiorelli filed a pro se motion under 28 U.S.C. § 2255 to set aside his conviction on the grounds of ineffective assistance of counsel. The District Court denied the motion without conducting a hearing on Fiorelli's claim. Fiorelli responded with a motion to reconsider, which the District Court also denied. This appeal followed.

We consider whether Fiorelli filed his notice of appeal within the time limits of Federal Rule of Appellate Procedure 4(a), and hence, whether we have jurisdiction to consider this case. We conclude that in computing the time for an appeal, any delay by the prison officials in transmitting the District Court's order denying Fiorelli's § 2255 motion must be subtracted from the time for filing a motion for reconsideration. Prison delay, if established, would toll the ten-day limitation for filing a motion under Federal Rule of Civil Procedure 59, and make Fiorelli's appeal timely. The present record does not contain the relevant dates of the prison's receipt and delivery of the District Court's order denying Fiorelli's § 2255 motion. We will therefore vacate the District Court's dismissal, and remand for the appropriate factual findings.

BACKGROUND

On December 6, 1994, Fiorelli was sentenced to 121 months imprisonment following his convictions for racketeering, extortion, embezzlement, and obstruction of justice. Some six years later, on January 26, 2000, Fiorelli filed a motion to set aside his conviction pursuant to 28 U.S.C. § 2255 alleging ineffective assistance of counsel during his trial. Fiorelli's motion alleged that his counsel failed to disclose a plea agreement offered by the government that would have resulted in a 60-month term of imprisonment. Fiorelli allegedly learned of this plea offer during a conversation with Thomas Carroll, an attorney and "family friend." Carroll did not represent Fiorelli in his criminal trial, and Fiorelli alleged only that Carroll "was aware" of a plea offer.

On April 9, 2001, the District Court denied Fiorelli's § 2255 motion. On about April 30, 2001, Fiorelli, again representing himself, filed a motion for reconsideration purportedly under Federal Rule of Civil Procedure 60(b). The District Court denied the motion for reconsideration in a second opinion entered on May 18, 2001. Fiorelli then filed a notice of appeal on July 17, 2001. We issued a Certificate of Appealability limited to the issue of ineffective assistance of counsel.

DISCUSSION

Determining whether we have jurisdiction to consider this appeal requires us to address several novel questions. First, whether the Federal Rules of Civil Procedure are applicable to § 2255 motions. Second, when a district court's order is deemed "entered" under the federal rules. Third, whether our decisions regarding the "mailbox rule" in prison suits apply to motions for reconsideration. This analysis is necessitated by the long delay in Fiorelli's notice of appeal. The District Court denied Fiorelli's § 2255 motion on April 9, 2001, and under Federal Rule of Appellate Procedure 4(a)(1)(B),*fn1 Fiorelli had sixty days to file a notice of appeal. As Fiorelli's appeal was not filed until July 17, 2001, his appeal is untimely unless the sixty-day limitation is tolled.

1.

We first consider the applicability of the Federal Rules of Civil Procedure to this § 2255 motion. Section 2255 permits federal prisoners to challenge their sentence in a proceeding before the sentencing court, rather than the district court in the jurisdiction where the prisoner is confined. Kaufman v. United States, 394 U.S. 217, 222 (1969) ("[T]he legislation was intended simply to provide in the sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in the district the prisoner was confined." (quoting Hill v. United States, 368 U.S. 424, 427 (1962)); United States v. Nahodil, 36 F.3d 323, 328-29 (3d Cir. 1994). Historically, a federal prisoner's motion to vacate, set aside, or correct a sentence, under § 2255 was considered an independent civil suit, and not a proceeding in the original criminal prosecution. Heflin v. United States, 358 U.S. 415, 418 n.7 (1959); United States v. Hayman, 342 U.S. 205, 209 n.4 (1952); Neely v. United States, 546 F.2d 1059, 1065 (3d Cir. 1976); Washington v. United States, 450 F.2d 945, 946 (3d Cir. 1971). Congress and the Supreme Court altered this tradition in 1976 with the adoption of the Rules Governing Section 2255 Proceedings for the United States District Courts (the "Section 2255 Rules"). Pub. L. 94-426, ยง 1, ...


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