United States of America v. Terry Peppers, agent of SKEE

ALD-176 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1051
___________
UNITED STATES OF AMERICA
v.
TERRY PEPPERS, agent of SKEE
Appellant
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 06-cr-00614-001)
District Judge: Honorable Katharine S. Hayden
____________________________________
Submitted for Possible Dismissal due to a Jurisdictional Defect,
a Decision on the Issuance of a Certificate of Appealability, and
for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 10, 2012
Before: SLOVITER, FISHER and WEIS, Circuit Judges
(Opinion filed: May 24, 2012)
_________
OPINION
_________
PER CURIAM.
Terry Peppers appeals, pro se, from a District Court order denying his
request to reopen the District Court‟s prior decision denying his request for a

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modification of sentence. For the reasons that follow, we will summarily affirm
the District Court‟s order.
I. Background
Peppers pleaded guilty to firearm offenses in violation of 18 U.S.C. §
922(g)(1), and he was sentenced in May 2007 to a term of 130 months of
imprisonment. In March 2008, Peppers sent a letter to the District Court
“regard[ing an] article [he] read in [T]he Star Ledger about Passiac County Jail,”
and asked “[if he was] eligible for any . . . downward [sentencing] departure?”
The District Court construed the letter as a request to modify his sentence pursuant
to Rule 35 of the Federal Rules of Criminal Procedure, and in July 2008 the
District Court denied the request as untimely.1 Peppers did not appeal. In June
2011, he filed a motion, citing Rule 60(b) of the Federal Rules of Civil Procedure,
arguing that he had intended his letter to be a timely motion under 28 U.S.C. §
2255. The District Court denied the motion by order entered December 13, 2011,
and Peppers appeals.
II. Jurisdiction
1 The District Court noted that in United States v. Sutton, 2007 WL 3170128
(D.N.J. Oct. 25, 2007, No. 07-426) and United States v. Ortiz, 2007 WL 4208802 (D.N.J.
Nov. 27, 2007, Nos. 06-858, 07-256), it had granted downward variances below the
sentencing guideline range based on conditions in the Passaic County Jail, a facility
where Peppers had been incarcerated during pretrial confinement.

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We begin with a question of appellate jurisdiction. The District Court
construed Peppers‟ March 2008 letter as a motion under the Federal Rules of
Criminal Procedure. That construction was entirely plausible, and Peppers did not
timely appeal it. Peppers much later filed a motion for reopening, citing the
Federal Rules of Civil Procedure. Although the Federal Rules of Civil Procedure
are not applicable to criminal cases, motions for reopening and reconsideration
may, of course, be filed in criminal cases. See United States v. Fiorelli, 337 F.3d
282, 286 (3d Cir. 2003). Under these circumstances, we think it proper to apply
the rules governing appeals in criminal cases. Thus, Peppers had 14 days to appeal
the District Court‟s denial of reopening. See Fed. R. App. P. 4(b)(1)(A).
The District Court did not receive Peppers‟ notice of appeal until January 4,
2012, 22 days after the entry of the District Court‟s order. Peppers, however, is
entitled to the benefit of the prison mailbox rule, see Houston v. Lack, 487 U.S.
266, 270-72 (1988), and he turned his notice of appeal over to prison officials on
December 30, 2011, only three days beyond the Fed. R. App. P. 4(b) deadline.
Peppers has also alleged that it took eight days for the District Court‟s order to
reach him. In an appropriate case, we might ask the District Court for factfinding
as to how much of the time delay was attributable to the prison. See United States
v. Grana, 864 F.2d 312, 313 (3d Cir. 1989); see also Long v. Atlantic City Police

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Dep‟t, 670 F.3d 436, 443-44 (3d Cir. 2012) (reaffirming Grana‟s vitality). We
need not do so here, though, because the 14-day period for appeals in a criminal
case is non-jurisdictional, see Virgin Islands v. Martinez, 620 F.3d 321, 329 (3d
Cir. 2010), and the Government has not pressed the timeliness issue.2 We
therefore turn to the merits. We review the District Court‟s denial of a motion for
reconsideration for an abuse of discretion only. See Max‟s Seafood Cafe ex rel.
Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).
III. Discussion
Under the version of Rule 35(a) applicable to Peppers,3 “[w]ithin 7 days
after sentencing, the court may correct a sentence that resulted from arithmetical,
technical, or other clear error.” This seven-day time limit is jurisdictional. United
States v. Higgs, 504 F.3d 456, 463 (3d Cir. 2007) (contrasting the time limit in
Rule 35 with the Supreme Court‟s decision in Eberhart v. United States, 546 U.S.
12 (2005), regarding Rule 33). In this case, Peppers was sentenced in May 2007
and he filed his letter, which was construed as a Rule 35 motion, in March 2008.
The District Court, therefore, understandably determined that it lacked jurisdiction
2 To the extent that this proceeding should be governed by Fed. R. App. P. 4(a)‟s 60-day
time limit, Peppers‟ appeal is, of course, timely.
3 The former version of Rule 35(a) applies because Peppers filed the March 2008 letter
before the section was amended. See Fed. R. Crim. P. 35 Advisory Comm. Notes.

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to modify Peppers‟ sentence under Rule 35. Nothing in Peppers‟ motion to reopen
called the District Court‟s jurisdictional analysis or timeliness calculation into
question in any way.4
Peppers now argues that the District Court was required to allow him an
opportunity to challenge the characterization of his letter as a Rule 35 motion. In
support, he cites Castro v. United States, 540 U.S. 375 (2003), and United States v.
Miller, 197 F.3d 644 (3d Cir. 1999). Peppers misapprehends those opinions. In
Castro and Miller, the courts were concerned about the strict limitations that the
Antiterrorism Effective Death Penalty Act (“AEDPA”) placed on § 2255 motions.
Castro, 540 U.S. at 377; Miller, 197 F.3d at 645. Therefore, in Castro, the
Supreme Court held that “when a court recharacterizes a pro se litigant‟s
[pleading] as a first § 2255 motion[,] . . . the district court must notify the pro se
litigant that it intends to recharacterize the pleading, warn the litigant . . . [of] the
restrictions on „second or subsequent‟ motions, and provide the litigant an
opportunity to withdraw the motion or to amend it so that it contains all the § 2255
claims he believes he has.” 540 U.S. at 383. Miller was similarly concerned about
4 We note, of course, that the time for appealing the District Court‟s 2008 order long ago
ran. Moreover, vehicles such as Fed. R. Civ. P. 60(b) cannot be used to provide an
untimely appeal. See, e.g., Page v. Schweiker, 786 F.2d 150, 158 (3d Cir. 1986).

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ensuring that a movant be allowed to make a knowledgeable decision before
proceeding via § 2255. The opinions do not require district courts, as here, to
make a searching inquiry before treating a letter a something other than a § 2255
motion. See 197 F.3d at 646.
Here, there was no indication that Peppers‟ March 2008 letter challenged his
conviction or incarceration in a way § 2255 anticipates,5 as Peppers‟ letter simply
stated that “[he was] curious to know [if his sentence was] eligible for any . . .
downward departure.” While a court must construe a pro se litigant‟s pleadings
liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972), it need not act as his
advocate, see Pliler v. Ford, 542 U.S. 225, 231 (2004). The District Court
generously treated Peppers‟ brief letter as a Rule 35 motion. Peppers has not now
shown that the District Court erred somehow by failing to do more.
Accordingly, we will summarily affirm the District Court‟s order.6
5 Peppers sought a downward sentencing departure based on the harsh conditions in
Passaic County Jail. Because this claim could, and should, have been brought at
sentencing and on direct appeal, his ability to bring it in a § 2255 motion was, we note,
quite limited. See, e.g., United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993),
abrogated on other grounds by LAR 31.3 (describing such a “default” of a claim).
Nothing in Peppers‟ brief letter to the District Court suggested the “cause” necessary to
proceed with such a “defaulted” claim. This makes the District Court‟s failure to
construe Peppers‟ letter as a § 2255 motion all the more unsurprising.
6 To the extent, if any, that Peppers requests or needs a certificate of appealability, the
request is DENIED. See 28 U.S.C. § 2253(c).

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