Da’rell Antoin Winters v. KRISTOPHER TASKILA, Warden

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0270p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DA’RELL ANTOIN WINTERS,
Petitioner-Appellant,
v.
KRISTOPHER TASKILA, Warden,
Respondent-Appellee.
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No. 21-2615
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:18-cv-12668—George Caram Steeh III, District Judge.
Argued: December 6, 2023
Decided and Filed: December 15, 2023
Before: SUTTON, Chief Judge; WHITE and BUSH, Circuit Judges.
_________________
COUNSEL
ARGUED: Sarah Welch, JONES DAY, Cleveland, Ohio, for Appellant. Scott R. Shimkus,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
ON BRIEF: Sarah Welch, Amanda R. Parker, JONES DAY, Cleveland, Ohio, for Appellant.
Scott R. Shimkus, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan,
for Appellee.
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OPINION
_________________
SUTTON, Chief Judge. Da’Rell Winters sought to appeal the district court’s decision
denying his application for habeas relief. But he did not receive the district court’s notice in time
to appeal. When he eventually did file a notice of appeal on his own behalf, he explained the
reason for his delay without formally seeking to reopen the time to appeal. This explanation,
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we hold, sufficed to allow the district court to construe his notice as a motion to reopen. We
therefore deem his appeal timely.
I.
A jury convicted Winters of armed robbery in 2014. After a protracted series of appeals
in the Michigan state courts, Winters applied to a federal court for habeas relief in 2018.
Representing himself, Winters argued that his conviction was not supported by sufficient
evidence, that there was an error in the jury instructions, that the trial court committed several
errors at sentencing, and that the court erred in denying several other motions. On March 10,
2021, the federal district court denied Winters’s habeas application and denied a certificate of
appealability.
The district court’s order and judgment, as it happened, took months to reach Winters.
The court mailed the documents to Winters at the St. Louis Correctional Facility on March 10.
But Winters was no longer there, prompting the post office to return the orders as undeliverable.
The court re-sent the documents to Winters at a different prison, and he received them “on or
about” May 18. R.17 at 1.
On June 1, Winters filed a notice of appeal with respect to the district court’s March 10
judgment. The filing consisted of two sentences:
Notice is hereby given that Da’Rell Winters, petitioner in the above named case,
hereby appeals to the United States Court of Appeals for the Sixth Circuit from
the final judgment dismissing his habeas corpus petition entered in this action on
the 10 day of March, 2021. Petitioner received this judgement via prison legal
mail and was signed on or about the 18th of May, 2021. Id.
The district court served a copy of the notice of appeal on this Court, and we dismissed
the appeal. Winters had 30 days after the district court’s March 10 decision to file a notice of
appeal, we noted, meaning he had to file the appeal by April 9, 2021. Winters’s June 1 notice of
appeal missed that deadline. A party who does not timely receive notice of a district court’s
judgment, it is true, may move the district court to reopen the time to file an appeal. See Fed. R.
App. P. 4(a)(6). But the district court had not considered or granted such a motion at that point.

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We accordingly dismissed Winters’s appeal on August 26, 2021, and directed that “[a]ny effort
to reopen the time for appeal should take place, if at all, in the district court.” Dkt. 7 at 2.
Winters moved the district court to reopen the time to appeal on September 2. The
district court granted the motion. In doing so, it retroactively construed Winters’s June 1 notice
of appeal as a motion to reopen. With this reopened time limit, the district court concluded that
Winters’s June 1 notice of appeal was timely.
The case languished in the district court for over a year with no activity. After Winters
sent a letter to our Court inquiring about this case and moved the district court to transfer his
June 1 notice of appeal to our Court, the district court transferred the notice on December 8,
2022. We reinstated the case and appointed counsel, Sarah Welch, to represent Winters. We
directed counsel to address “whether this appeal is timely and whether we have jurisdiction to
hear it.” Dkt. 13 at 1.
II.
After a loss in the district court, the door to the appellate courts is open to all but not open
for all time. Congress sets the time to appeal. In civil cases that do not involve the federal
government, it says, “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.” 28 U.S.C. § 2107(a).
This 30-day deadline has a few exceptions, two of which bear on this appeal and both of
which appear in a federal statute (28 U.S.C. § 2107) and the Appellate Rules (Rule 4). Under the
statute, an aspiring appellant who misses the deadline may seek an extension of time or seek to
reopen the time-for-appeal window. Extension: “The district court may, upon motion filed not
later than 30 days after the expiration of the time otherwise set for bringing an appeal, extend the
time for appeal upon a showing of excusable neglect or good cause.” 28 U.S.C. § 2107(c).
Reopening: “[I]f the district court finds—(1) that a party entitled to notice of the entry of
judgment or order did not receive such notice . . . within 21 days of its entry, and (2) that no
party would be prejudiced, the district court may, upon motion . . . reopen the time for appeal for
a period of 14 days from the date of entry of the order reopening the time for appeal.” Id.

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Consistent with the statute, Rule 4(a)(5) of the Federal Rules of Appellate Procedure
permits time extensions. It says that a district court “may extend the time to file a notice of
appeal” if “a party so moves” within 30 days after the time to appeal expires, and if “that party
shows excusable neglect or good cause.” Likewise, Rule 4(a)(6) permits the district court to
reopen the time to appeal. It says that a district court “may reopen the time to file an appeal for a
period of 14 days after the date when its order to reopen is entered, but only if . . . (A) the court
finds that the moving party did not receive notice” within 21 days of the entry of judgment, “(B)
the motion is filed within 180 days after the judgment or order is entered or within 14 days after
the moving party receives notice . . . , whichever is earlier; and (C) the court finds that no party
would be prejudiced.” These timetables, found in the statute and the Appellate Rules, limit a
federal appellate court’s subject matter jurisdiction. See Bowles v. Russell, 551 U.S. 205, 213–14
(2007) (treating time limits in the Appellate Rules as jurisdictional when they turn on a
congressional time limit).
The deadlines apply to habeas cases. Habeas proceedings are “proceeding[s] of a civil
nature,” making them subject to the ordinary time limits on filing a notice of appeal for civil
cases. 28 U.S.C. § 2107(a); see also Rules Governing Section 2254 Cases in the United States
District Courts 11(b) (“Federal Rule of Appellate Procedure 4(a) governs the time to appeal” a
district court’s denial of habeas relief); Bowles, 551 U.S. at 213, 215 (applying the time limits to
a habeas case).
Our jurisdiction over this appeal thus turns on whether Winters complied with the
pertinent filing deadlines. All agree that Winters missed the initial 30-day deadline for filing a
notice of appeal. He therefore needed to file either a motion to extend the appeal deadline within
30 days of the district court’s March 10 judgment (by April 9) or a motion to reopen the time to
appeal within 14 days of his May 18 receipt of notice of the judgment (by June 1). Had Winters
filed a motion to reopen on June 1, this case would be easy. But he did not. He instead filed a
notice of appeal.
At stake is whether we can fairly construe this June 1 notice of appeal as a motion to
reopen.

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In resolving this issue, the parties share some common ground. They agree that the form
of a pleading does not by itself control the inquiry. A pro se prisoner could comply with these
filing deadlines even if he captions a request with the wrong label or fails to satisfy a non-
significant requirement of a notice of appeal. See Young v. Kenney, 949 F.3d 995, 997 (6th Cir.
2020) (per curiam) (construing a filing styled as a “notice of appeal” as a Rule 4(a)(5) motion for
an extension); Reho v. United States, 53 F.4th 397, 399 (6th Cir. 2022) (order) (treating a motion
for an extension of time to file a request for a certificate of appealability as a motion for an
extension of time to file an appeal); Smith v. Barry, 502 U.S. 244, 249 (1992) (explaining that the
rules “do not preclude an appellate court from treating a filing styled as a brief as a notice of
appeal”); Becker v. Montgomery, 532 U.S. 757, 765–66 (2001) (finding no jurisdictional bar to
accepting a notice of appeal that did not satisfy the signature requirement); Fed. R. App. P.
3(c)(7) (“An appeal must not be dismissed for informality of form or title of the notice of
appeal . . . .”). Substance, not style, function, not form, drives the inquiry.
The parties also agree that a single pleading may serve more than one function—for
example, that a brief may serve as a notice of appeal and that a notice of appeal may serve as a
motion for an extension of time. Confirming the point, the Supreme Court has held that, even
though the Appellate Rules “envision that the notice of appeal and the appellant’s brief will be
two separate filings,” they may be the same document under some circumstances. Smith, 502
U.S. at 249. The Appellate Rules specifically permit dual filings in some settings. They say, for
example, that a habeas petitioner’s notice of appeal may be treated as a request for a certificate of
appealability. Fed. R. App. P. 22(b)(2).
The parties, last of all, agree that two cases provide the bookends to this inquiry: Martin
v. Sullivan, 876 F.3d 235 (6th Cir. 2017) (per curiam), and Young v. Kenney, 949 F.3d 995 (6th
Cir. 2020) (per curiam). In Martin, a pro se prisoner filed a late notice of appeal without filing a
separate motion to reopen. 876 F.3d at 236, 238. The notice read as follows: “Notice is hereby
given that [Petitioner] appeals to the United States Court of Appeal for the Sixth Circuit from the
Judgment entered in this action on 5/31/17.” Notice of Appeal at 1, Martin v. Sullivan, No. 2:17-
cv-10815-DPH-DRG (E.D. Mich. July 28, 2017), ECF No. 11. This barebones notice of appeal,
we explained, could not be construed as a motion to reopen. Martin, 876 F.3d at 237. “[I]f a

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losing party wants more time to file an appeal, it must file a motion in the district court asking
for more time.” Id. “[M]erely filing a notice of appeal does not amount to a motion for more
time to file an appeal.” Id.
In Young, a habeas petitioner filed a notice of appeal eight days late. 949 F.3d at 996.
While the notice did not seek an extension of time, it acknowledged the lateness of the appeal
and included a thorough explanation for the delay. See Notice of Appeal at 1–2, Young v.
Kenney, No. 5:19-cv-00135-TBR (W.D. Ky. Dec. 30, 2019), ECF No. 18. Young “state[d] that
he did not see” the judgment when it issued because “he was placed on dry cell protocol.”
Young, 949 F.3d at 996. He then explained that he went to a different prison and was “placed in
the prison’s psychiatric unit ‘pending a mental health evaluation and stabilization.’” Id. at 997.
He added “that inmates in the psychiatric unit are not permitted to have property in their
possession,” and attached an exhibit confirming this account. Id. We held that this notice of
appeal “effectively read[]” as a Rule 4(a)(5) motion for an extension of time and could “be
treated as such.” Id.
Against this backdrop, it is easy to see what separates the parties: a disagreement over
whether this case is more like Martin or Young.
In our view, a key dichotomy emerges from the two cases. In one direction, a barebones
notice of appeal that is late will not serve by itself as a motion for an extension or a motion to
reopen. That is the Martin rule, and it mirrors the decisions of other courts of appeals from
across the country. See Poole v. Fam. Ct. of Newcastle Cnty., 368 F.3d 263, 268 (3d Cir. 2004)
(motion to reopen); Ladeairous v. Garland, 45 F.4th 188, 192 & n.3 (D.C. Cir. 2022) (motion to
reopen); see also 16A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 3950.3 n.54 (5th ed. 2019) (collecting cases concerning motions for extension). In the other
direction, a notice of appeal that adds other information—say, that the appeal is late, that
explains what happened, that explains why the appellant could not have filed it earlier—may in
some circumstances be construed as a motion for extension or to reopen even though it does not
explicitly use those words.

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The district court in this instance did not exceed its discretion in treating this notice of
appeal as a motion to reopen. In the first place, this was not a barebones notice of appeal. In
addition to appealing the judgment below, it contained an explanation for the delay.
“Petitioner,” it said, “received this judgement via prison legal mail and was signed on or about
the 18th of May, 2021.” R.17 at 1. Martin thus does not directly control this case.
In the second place, this notice of appeal functionally satisfied the requirements for a
motion to reopen. Under Rule 4(a)(6), a motion to reopen must satisfy three requirements:
(1) The appellant must file the request no later than 14 days after receiving notice of the district
court’s decision, (2) the court must find “that the moving party did not receive notice . . . of the
entry of judgment . . . within 21 days after entry,” and (3) the court must find “that no party
would be prejudiced.” Fed. R. App. P. 4(a)(6). Winters filed the pleading within 14 days of
obtaining notice of the district court’s decision. And his pleading acknowledged its tardiness—
that Winters did not receive notice of the district court’s decision until May 18, 2021. The
notice, it is true, does not address the last requirement for a motion to reopen—that the opposing
party will not suffer “prejudice.” But it is difficult to see what Winters could have said about
this issue anyway. It is usually not within an appellant’s ken to know how the opposing party
might or might not be prejudiced by reopening the appeal period. The point makes no difference
today anyway. To his credit, counsel for the Warden acknowledged this reality at oral argument
and denied that the Warden would be prejudiced here. All in all, the district court did not exceed
its discretion in treating this notice of appeal as a motion to reopen.
In addition, it bears adding, Winters did not need to file a new notice of appeal after the
district court granted the motion to reopen. A notice of appeal filed too early, generally
speaking, ripens when the window to appeal begins. See Good v. Ohio Edison Co., 104 F.3d 93,
95 (6th Cir. 1997); Bonner v. Perry, 564 F.3d 424, 428 (6th Cir. 2009); see also FirsTier Mortg.
Co. v. Inves. Mortg. Ins. Co., 498 U.S. 269, 273 (1991) (recognizing that “unlike a tardy notice
of appeal, certain premature notices do not prejudice the appellee,” so it makes little sense for
“the technical defect of prematurity” to “extinguish an otherwise proper appeal”). Rule 4(a)(2)
says that notices of appeal filed early—those filed “after the court announces a decision or order

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[] but before the entry of the judgment or order”—are “treated as filed on the date of and after
the entry.”
That Winters has timely filed his appeal does not perfect his appeal in full. Recall that he
is a habeas applicant and that the district court rejected his request for a certificate of
appealability. He thus must obtain permission from us to file the appeal. Winters has not filed a
request for a certificate of appealability in our court. But consistent with Fed. R. App. P.
22(b)(2), we may treat his notice of appeal as a request for a certificate of appealability. In due
course, we will consider that separate jurisdictional requirement. See Miller-El v. Cockrell, 537
U.S. 322, 336 (2003).
A final point. One could fairly wonder when it might be appropriate to draw the line on
how many functions a single pleading may serve. A critic of our approach might characterize
our forgiving assessment of this two-sentence pleading in this way: (1) It looked like a notice of
appeal but we did not treat it as one because it was late; (2) it then looked like a motion for an
extension of time (given the excuse in it) but we did not treat it as one because that too would
have been late; (3) it then became a motion to reopen, which was not late; and (4) it then served
as a request for a certificate of appealability. We appreciate the point. We appreciate as well
that the courts of appeal are not all in tune on these issues. Compare, e.g., Poole, 368 F.3d at
269 (3d Cir. 2004), with Sanders v. United States, 113 F.3d 184, 187 (11th Cir. 1997) (per
curiam) (construing notice of appeal as motion to reopen); Parrish v. United States, 74 F.4th
160, 163 (4th Cir. 2023) (one document cannot serve as both a notice of appeal and a motion to
reopen), with United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (one document can
serve as both a notice of appeal and a motion to reopen). As it happens, there is a body whose
charge it is to review issues of precisely this sort (the Advisory Committee on the Federal Rules
of Appellate Procedure) and a statute (the Rules Enabling Act, 28 U.S.C. §§ 2071–77) that is
designed to create a process for improving the rules where needed. That may be a profitable next
stage for this debate.
We conclude that Winters’s appeal is timely. The Clerk’s Office is directed to set a
briefing schedule over whether to grant a certificate of appealability in this appeal.

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