PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-6248

KEITH ALAN CLARK,

Petitioner - Appellant,

v.

LARRY CARTLEDGE, Warden Perry Correctional Institution,

Respondent - Appellee.

Appeal from the United States District Court for the District of 

South Carolina, at Rock Hill. Bruce H. Hendricks, District 

Judge. (0:13-cv-00351-BHH)

Argued: May 12, 2016 Decided: July 12, 2016

Before GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit 

Judges.

Jurisdiction affirmed by published opinion. Chief Judge Gregory

wrote the opinion, in which Judge Harris joined. Judge Niemeyer 

wrote a dissenting opinion.

ARGUED: Dana Wallace, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, 

Charlottesville, Virginia, for Appellant. Susannah Rawl Cole, 

OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, 

South Carolina, for Appellee. ON BRIEF: Stephen L. Braga, 

Jude Halawi, Third Year Law Student, Andrew Selman, Third Year 

Law Student, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA 

SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. 

Alan Wilson, Attorney General, John W. McIntosh, Chief Deputy 

Attorney General, Donald J. Zelenka, Senior Assistant Deputy 
2

Attorney General, Brendan J. McDonald, Assistant Attorney 

General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, 

Columbia, South Carolina, for Appellee.
GREGORY, Chief Judge:

Rule 3 of the Federal Rules of Appellate Procedure 

conditions federal appellate jurisdiction on the filing of a 

timely notice of appeal. In this case, we hold that a document 

filed by a pro se litigant as an extension of time to request a 

certificate of appealability qualifies as the notice of appeal 

required by Rule 3.

I.

In 2006, Keith Alan Clark, after a jury trial in South 

Carolina, was found guilty of kidnapping and assault with intent 

to commit criminal sexual conduct. The trial court sentenced 

Clark to concurrent sentences of thirty years. After a series 

of unsuccessful appeals and postconviction procedures in South 

Carolina courts, Clark filed a pro se petition for writ of 

habeas corpus in the U.S. District Court for the District of 

South Carolina pursuant to 28 U.S.C. § 2254. Clark alleged 

several constitutional violations stemming from his conviction, 

including, among others, that he received ineffective assistance 

of counsel in violation of the Sixth Amendment.

In response to Clark’s petition, the state, representing 

Warden Larry Cartledge, filed a motion for summary judgment, 

which was referred to a magistrate judge. On February 3, 2014, 

the magistrate judge issued a report and recommendation, 
4

recommending that the state’s motion for summary judgment be 

granted. Clark then timely filed objections to the report and 

recommendation. On December 4, 2014, the district court issued 

its judgment and order, overruling Clark’s objections and 

adopting the magistrate judge’s report and recommendation. In 

that same order, the district court denied Clark a certificate 

of appealability, finding that he failed to meet 28 U.S.C. 

§ 2253(c)’s standard for issuance of such a certificate.

On December 18, 2014, Clark, still pro se, filed a motion 

for extension of time to request a certificate of appealability.1 

The question at heart in this case is whether this motion, filed 

within the thirty day requirement of Federal Rule of Appellate 

Procedure 4, is the functional equivalent of a formal notice of 

appeal demanded by Rule 3. See Becker v. Montgomery, 532 U.S. 

757, 765 (2001) (stating that a party seeking appellate review 

must comply with the “linked jurisdictional provisions” of Rules 

3 and 4 of the Rules of Appellate Procedure). If we construe 

the motion for an extension of time as a notice of appeal, then 

all events that occurred in the district court after the notice 

of appeal was filed are of no moment, as a “timely filed notice 

 1 The district court denied Clark’s motion in a text order 

on December 23, 2014. On January 22, 2015, Clark filed a motion 

for certificate of appealability with the district court, which 

the court denied on January 27, 2015. Clark then filed a notice 

of appeal on February 11, 2015.
5

of appeal transfers jurisdiction of a case to the court of 

appeals and strips a district court of jurisdiction to rule on 

any matters involved in the appeal.” Doe v. Public Citizen, 749 

F.3d 246, 258 (4th Cir. 2014).

II.

We review our own jurisdiction de novo and must raise the 

issue sua sponte. Kporlor v. Holder, 597 F.3d 222, 225 (4th 

Cir. 2010).

Federal Rule of Appellate Procedure 3(c) dictates that a 

“notice of appeal must specify the party or parties taking the 

appeal . . .; designate the judgment, order or part thereof 

being appealed; and name the court to which the appeal is 

taken.” Fed. R. App. P. 3(c). In addition, the notice of 

appeal “must specifically indicate the litigant’s intent to seek 

appellate review . . . [to] ensure that the filing provides 

sufficient notice to other parties and the courts.” Smith v. 

Barry, 502 U.S. 244, 248 (1992).

While the requirements of Rule 3 serve important purposes 

and are mandatory and “jurisdictional in nature,” Torres v. 

Oakland Scavenger Co., 487 U.S. 312, 316 (1988), “functional”

rather than formalistic compliance is all that is required, 

Smith, 502 U.S. at 248. As another subsection of Rule 3 warns, 

an appeal “must not be dismissed for informality of form or 
6

title . . . , or for failure to name a party whose intent to 

appeal is otherwise clear from the notice.” Fed. R. App. P. 

3(c)(4). And as the Supreme Court has instructed, 

“imperfections in noticing an appeal should not be fatal where 

no genuine doubt exists about who is appealing, from what 

judgment, to which appellate court.” Becker, 532 U.S. at 767.

Courts thus “will liberally construe the requirements of 

Rule 3,” Smith, 502 U.S. at 248, to permit notices of appeal 

“technically at variance with the letter of a procedural rule” 

but that amount to “the functional equivalent of what the rule 

requires,” Torres, 487 U.S. at 316–17. We, moreover, have held 

that the policy of construing notices of appeal liberally 

applies “especially” to pro se filings. United States v. 

Garcia, 65 F.3d 17, 19 (4th Cir. 1995). Therefore, as long as 

the pro se party’s notice of appeal provided the notice required 

by Rule 3, evinced an intent to appeal an order or judgment of 

the district court, and the appellee was not prejudiced or 

misled by the notice, then the notice’s technical deficiencies 

will not bar appellate jurisdiction. See Jackson v. Lightsey, 

775 F.3d 170, 175-76 (4th Cir. 2014) (“Where a challenged notice 

of appeal has provided adequate notice and caused the 

complaining party no prejudice, there is no reason to allow a 

‘technical impediment[ ]’ to foreclose appellate review.” 

(quotation and citations omitted)); Canady v. Crestar Mortg. 
7

Corp., 109 F.3d 969, 974–75 (4th Cir. 1997) (finding compliance 

with Rule 3 in light of adequate notice and lack of prejudice to 

the appellee); Smith, 502 U.S. at 248 (notice afforded by a 

document determines the document’s sufficiency as a notice of 

appeal).

III.

With these principles in mind, we turn to the facts of this 

case. Clark filed a “Motion for Extension of Time to request 

for a Certificate of Appealability.” J.A. 621. Clark, 

represented by counsel on appeal, contends that his motion 

served as the functional equivalent of a notice of appeal 

because it specified the party taking the appeal and the order 

being appealed. Clark further argues that while his motion did 

not specify the court to which the appeal was being taken, we 

have allowed appeals where “there is only one possible appellate 

forum,” even when the party fails to “add the words ‘Fourth 

Circuit’ to [their] notice of appeal.” Jackson, 775 F.3d at 

175-76. We agree.

In that motion, Clark identifies himself as the person who 

intends to appeal, as well as the order he intends to appeal –

the district court’s order denying his objections to the 

magistrate judge’s report and recommendation. Moreover, Clark’s 

intent to appeal to this Court “is obvious – the term 
8

‘certificate of appealability’ necessarily refers to an appeal 

to the relevant court of appeals.” Wells v. Ryker, 591 F.3d 

562, 565 (7th Cir. 2010); see also 28 U.S.C. § 2253 (allowing 

review of a final order “by the court of appeals for the circuit 

in which the proceeding is held” only if a “circuit justice or 

judge issues a certificate of appealability”).

The state does not, and cannot, seriously dispute that 

Clark’s motion complied with Rule 3. In fact, the state 

conceded during oral argument that Clark’s motion satisfied the 

notice requirements of Rule 3. Rather, the state argues that 

Clark’s motion did not convey any intention to appeal at all, 

and “shows only that he may wish to seek appellate review at 

some point in the future;” “in other words, [the motion is] 

speculative.” State’s Br. at 6. We disagree.

To be sure, a motion for an extension of time on its face 

might not conclusively show subjective certainty about the 

party’s desire to appeal. “But this view loses sight of the 

fact that it is ‘the notice afforded by a document, not the 

litigant’s motivation in filing it, [that] determines the 

document’s sufficiency as a notice of appeal.’” Isert v. Ford 

Motor Co., 461 F.3d 756, 762 (6th Cir. 2006) (quoting Smith, 502 

U.S. at 249). Thus Clark’s subjective intent - if it was indeed 

to only seek appellate review in the future - is irrelevant. 

The relevant inquiry is whether the “notice of appeal . . . 
9

specifically indicate[s] the litigant’s intent to seek appellate 

review.” Smith, 502 U.S. at 248.

Here, as already noted, Clark’s motion complied with Rule 

3’s notice requirements. Further, Clark, in support of his 

motion for extension of time states: “[I]n order to properly 

file for a Certificate of Appealability, [I] request[] an 

additional fifteen (15) days beyond the current due date.” J.A. 

621. The reason for his request? Clark had limited access to 

the prison law library, which “prevent[ed] him from conducting 

the necessary legal research to properly file.” Id.

There would be little reason for Clark to request an 

extension of time to properly file a certificate of 

appealability if he did not intend to appeal. Under these 

circumstances, we believe that there could be no genuine doubt 

that the motion for extension of time indicates Clark’s intent 

to appeal the district court’s order overruling his objections 

to the magistrate judge’s report and recommendation, and that 

motion sufficed to put the state on notice of that intent.2 And, 

to require more explicit language from a pro se litigant would 

turn Smith’s instruction that we liberally construe Rule 3’s 

 2 The state does not contend that it will suffer any 

prejudice if we construed Clark’s motion as a notice of appeal.
10

requirements on its head. Thus, we conclude that Clark’s motion 

evinced a desire to appeal.3

Remarkably, the dissent contends that our holding today is 

“unprecedented,” “stretch[ing] the functional equivalency test 

far beyond its defined bounds.” Dissenting Op. at 13, 17. But 

the dissent’s contention conveniently ignores precedent in other 

circuits. In truth, our conclusion today – this “untenable 

fabrication,” as the dissent would have it, id. at 21 - flows 

naturally from our own precedent, see e.g., Garcia, 65 F.3d at 

19 (“[P]leadings under Rule 3 are liberally construed, 

especially pro se pleadings.”), and is consistent with the 

holdings of other circuits, see, e.g., Rountree v. Balicki, 640 

F.3d 530, 536 (3d Cir. 2011) (“By indicating [, in his motion 

for extension of time to file for a certificate of 

appealability, that] he would file for a certificate of 

 3 Our jurisdictional inquiry has one more step, and that is 

Clark’s failure to secure a certificate of appealability, as 

required by 28 U.S.C. § 2253(c). The district court denied a 

certificate of appealability, and Clark presented no request for 

a certificate of appealability to this Court as permitted by 

Federal Rule of Appellate Procedure 22(b). Having construed 

Clark’s motion for an extension of time to request a certificate 

of appealability as a notice of appeal, however, we will also 

construe it as a request for a certificate of appealability. 

See Jones v. Braxton, 392 F.3d 683, 689 (4th Cir. 2004) (“Under 

Federal Rule of Appellate Procedure 22(b), we are required to 

construe the notice of appeal that Jones filed as an application 

for a certificate of appealability.”); see also Fed. R. App. P. 

22(b)(2) (“If no express request for a certificate [of 

appealability] is filed, the notice of appeal constitutes a 

request addressed to the judges of the court of appeals.”).
11

appealability, his pro se motion evidenced an intention to 

appeal, which means it constituted a notice of appeal.” 

(quotation marks and citation omitted)); Wells, 591 F.3d at 565 

(“[T]he motion for extension of time to request a certificate of 

appealability is an attenuated example of a functional 

equivalent to a notice of appeal, and probably lies at the outer 

limit of what motions may suffice under Smith v. Barry. But, we 

are confident that the appellant’s motion in this case served 

adequate notice under the Rule.”).

Interestingly, the state cited Bailey v. Cain, 609 F.3d 763 

(5th Cir. 2010), for the proposition that a motion for an 

extension of time to file a certificate of appealability does 

not qualify as a notice of appeal. Not only is the state’s 

reliance on that case misplaced, but the holding in Bailey

should assuage the state’s concern that our decision today will, 

in effect, eliminate, undermine, or abolish the Federal Rules of 

Appellate Procedure. In Bailey, the Fifth Circuit assumed that 

a motion for an extension of time to file a certificate of 

appealability could provide adequate notice under Rule 3. Id.

at 766. The court, however, concluded that Bailey’s motion came 

up short; “[o]mitted from Bailey’s motion that was present in 

Wells is a specific reference to the judgment or order from 

which appeal was taken.” Id. Because Bailey’s motion did not 

satisfy two of the three notice requirements of Rule 3, the 
12

court held that Bailey’s motion to extend was not a functional 

equivalent of a notice of appeal. Id. at 767. In other words, 

noncompliance with Rule 3 was “fatal,” see Smith, 502 U.S. at 

248, to Bailey’s appeal.

The result in Bailey illustrates why the state’s doomsday 

scenario - this Court automatically treating every motion for 

extension of time as a notice of appeal – will never occur. In 

order for us to find that a motion for an extension of time is 

the functional equivalent of a notice of appeal, the litigant’s 

motion must be timely under Rule 4 and must satisfy the notice 

requirements of Rule 3. Clark’s motion did just that.

IV.

For the foregoing reasons, we have jurisdiction to consider 

Clark’s application for a certificate of appealability.

JURISDICTION AFFIRMED
13

NIEMEYER, Circuit Judge, dissenting:

On December 4, 2014, the district court entered final 

judgment denying Keith Clark’s petition under 28 U.S.C. § 2254 

for a writ of habeas corpus. Clark filed his notice of appeal 

63 days later, on February 5, 2015, which was therefore 

untimely. See 28 U.S.C. § 2107(a) (requiring that notice of 

appeal be filed within 30 days after the entry of judgment); 

Fed. R. App. P. 4(a)(1)(A) (same). Because the requirement for 

timely filing a notice of appeal is “mandatory and 

jurisdictional,” Bowles v. Russell, 551 U.S. 205, 209-10 (2007), 

we are required to dismiss Clark’s appeal. 

In an unprecedented opinion, the majority holds that a 

motion that Clark filed on December 18, 2014, for an extension 

of time to request a certificate of appealability was the 

functional equivalent of a notice of appeal that satisfied the 

jurisdictional requirements of § 2107 and Federal Rules of 

Appellate Procedure 3 and 4. It reasons that (1) because 

Clark’s motion for an extension of time related to a future 

request to file a certificate of appealability and (2) because a 

future request for a certificate of appealability would relate 

ultimately to a future notice of appeal, Clark’s motion must be 

treated as a document giving sufficient notice of his appeal. 

The majority states that it “believe[s] that there could be no 
14

genuine doubt that the motion for extension of time indicates 

Clark’s intent to appeal.” Ante at 8.

The majority’s decision dramatically oversteps the bounds 

of liberally construing a document and, in sympathy for the 

pleading challenges facing pro se litigants, substantially and 

substantively rewrites it. Under no fair construction of 

Clark’s motion for an extension of time could a party or a court 

conclude that the document “specifically indicate[s] [Clark’s] 

intent to seek appellate review” with the purpose that it 

“provide[] sufficient notice to other parties and the courts.” 

Smith v. Barry, 502 U.S. 244, 248 (1992). As the Smith Court 

explained, “the notice afforded by a document, not the 

litigant’s motivation in filing it, determines the document’s 

sufficiency as a notice of appeal.” Id. (emphasis added). How 

can a simple request for an extension to file a certificate of 

appealability be fairly understood to give notice of appeal?

The majority’s decision will cause much mischief, some 

unintended but some quite foreseeable and damaging to the 

appellate process. Hereafter, for example, a litigant who files 

a request for an extension of time to file an appeal will, in 

effect, have his motion automatically decided in his favor 

without having to show any excusable neglect or good cause, as 

required by 28 U.S.C. § 2107(c) and Federal Rule of Appellate
15

Procedure 4(a)(5)(A), because his motion will have to be taken 

as a notice of appeal.

Because I would dismiss Clark’s appeal as untimely, I 

respectfully dissent. 

I

Clark was convicted in the South Carolina courts of 

kidnapping and assault with intent to commit criminal sexual 

conduct. After having unsuccessfully sought direct and 

collateral review from the South Carolina courts, he filed this 

pro se petition for a writ of habeas corpus pursuant to 28 

U.S.C. § 2254. 

On December 4, 2014, the district court denied Clark’s 

petition, granting summary judgment to Larry Cartledge, the 

Warden at Perry Correctional Institution, where Clark was 

housed. It also denied Clark a certificate of appealability. 

On December 18, 2014, Clark filed a document that he called a 

“Motion for Extension of Time to request for a Certificate of 

Appealability.” The document requested “an additional fifteen 

(15) days beyond the current due date” “in order to properly 

file for a Certificate of Appealability” with respect to the 

district court’s December 4 order denying his habeas petition. 

He gave as his reasons the late receipt of the district court’s 

December 4 order, restrictions on his access to the prison law 
16

library, and institutional lockdowns to which he was subjected, 

and in support of his motion, he cited Federal Rule of Civil 

Procedure 6(b), which addresses “Extending Time.” The district 

court denied Clark’s motion by order dated December 23, 2014. 

Clark nonetheless filed a request for a certificate of 

appealability with the district court, which the court also 

denied.

The record shows that Clark himself clearly understood that 

his motion for a request for an extension of time to request a 

certificate of appealability was not to serve as a notice of 

appeal because he thereafter filed with the district court a 

document that he called a “Request for Certificate of 

Appealability” and later a document that he called a “Notice of 

Appeal.” Clark’s notice of appeal clearly manifested his 

intent, with that document, to appeal. As it states, “The 

petitioner Keith Alan Clark hereby appeal[s] his Federal Habeas 

Corpus action that was decided by the Honorable Bruce Howe 

Hendricks, U.S. District Judge.” His notice of appeal, however, 

was filed with prison authorities on February 5, 2015, 63 days 

after the district court’s order denying his petition for habeas 

corpus, and therefore was untimely. 

Under these facts, the majority concludes that Clark’s 

request for an extension of time to file a certificate of 

appealability was the “functional equivalent” of a notice of 
17

appeal and therefore that his filing of the motion conferred 

jurisdiction on this court on December 18, 2014. 

II

It is uncontroverted that Clark filed his “notice of 

appeal” long after the 30-day time limit fixed by 28 U.S.C. 

§ 2107(a) and Federal Rule of Appellate Procedure 4(a)(1)(A), a 

deadline that the Supreme Court has repeatedly described as 

“mandatory and jurisdictional.” Bowles, 551 U.S. at 209-10; see 

also Ray Haluch Gravel Co. v. Cent. Pension Fund, 134 S. Ct. 

773, 779 (2014). The majority nonetheless concludes that we 

have jurisdiction to consider Clark’s appeal by construing 

Clark’s earlier motion for an extension of time to request a 

certificate of appealability as the “functional equivalent” of a 

notice of appeal. The majority’s holding stretches the 

functional equivalency test far beyond its defined bounds. 

As the Supreme Court has defined the test, “if a litigant 

files papers in a fashion that is technically at variance with 

the letter of a procedural rule, a court may nonetheless find 

that the litigant has complied with the rule if the litigant’s 

action is the functional equivalent of what the rule requires.” 

Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17 (1988). 

Thus, in this case, we would have to conclude, in applying the 

test, that Clark’s motion for an extension of time was the 
18

functional equivalent of what Federal Rule of Appellate 

Procedure 3 requires for a notice of appeal. 

Federal Rule of Appellate Procedure 3 provides that an 

appeal “may be taken only by filing a notice of appeal” and 

requires that the notice of appeal “specify the party . . . 

taking the appeal,” “designate the judgment [or] order . . . 

being appealed,” and “name the court to which the appeal is 

taken,” Fed. R. of App. P. 3(a)(1), (c)(1) (emphasis added). In 

substance, the Rule requires that “a notice of appeal must 

specifically indicate the litigant’s intent to seek appellate 

review,” with the purpose of “ensur[ing] that the filing 

provides sufficient notice to other parties and the courts.” 

Smith, 502 U.S. at 248. These requirements of Rule 3 must be 

substantially satisfied by a document, and it is the “notice 

afforded by [the] document, not the litigant’s motivation in 

filing it, [that] determines the document’s sufficiency as a 

notice of appeal.” Id. (emphasis added). 

In this case, Clark’s motion for an extension of time to 

request a certificate of appealability provides no manifestation 

that it was intended to serve as a notice of appeal. To the 

contrary, Clark indicated in the motion that “[he], in order to 

properly file for a Certificate of Appealability, [was] 

requesting an additional fifteen (15) days beyond the current 

due date.” And the intent communicated by the document was made 
19

yet clearer as it pointed to the fact that Clark needed more 

time to research the certificate of appealability. Moreover, 

the motion relied on Federal Rule of Civil Procedure 6(b), 

providing for extensions of time. This document simply cannot 

be read by any other party or a court as communicating notice of 

an appeal.

Furthermore, Clark’s motion for an extension of time was 

not the product of confusion, nor was the motion ambiguous. His 

motion for an extension of time was just that, as he explained 

within the motion. The fact that he did indeed later file a 

request for a certificate of appealability and a notice of 

appeal demonstrates the unambiguous role of his motion for an 

extension of time. It is simply too creative to conclude that 

Clark’s motion was the functional equivalent of a notice of 

appeal sufficient to give the parties and the court notice that, 

with the filing of the motion, he was intending to appeal.

To reach its conclusion, the majority had to effectively 

rewrite Clark’s motion. In its rewrite, the majority 

substitutes Clark’s intent to pursue appellate review in the 

future for his present intent to obtain a 15-day extension to 

file a future certificate of appealability. This is how the 

majority does it: 
20

(1) Although Clark captioned his motion, “MOTION FOR 

EXTENSION OF TIME,” the majority takes the motion to 

be a “notice of appeal.” Ante at 2.

(2) When, in his motion, Clark identified himself as the 

party “bring[ing] a Motion for Extension of Time,” the 

majority reconstructs this language to mean that 

“Clark identifies himself as the person who intends to 

appeal.” Ante at 6 (emphasis added).

(3) When, in his motion, Clark wrote that, among other 

reasons given for the motion, he needed the extension 

of time because he did not receive the district 

court’s order denying habeas relief in a timely 

manner, pointing out that the order was dated December 

4, 2014, but he “received service of the Order . . . 

on December 9, 2014[,] 5 days after it was served,” 

the majority reconstructs the language to mean that 

“Clark identifies . . . the order he intends to appeal

-- the district court’s order denying his [petition 

for habeas corpus].” Ante at 6 (emphasis added).

(4) While Clark addressed his motion to the district 

court, seeking 15 additional days within which to file 

his certificate of appealability in that court (where 

he ultimately filed his certificate of appealability), 

the majority reconstructs it to reveal “Clark’s intent 
21

to appeal to [the Fourth Circuit]” because “the term 

‘certificate of appealability’ necessarily refers to 

an appeal to the relevant court of appeals.” Ante at 

6-7 (emphasis added) (internal quotation marks and 

citation omitted).

With these reconstructions of Clark’s document, the majority 

concludes that the motion for an extension of time satisfies 

Federal Rule of Appellate Procedure 3, “suffic[ing] to put the 

state on notice” of Clark’s intent to appeal, and that “there 

could be no genuine doubt” about that. Ante at 8.

The majority’s conclusion is based on an untenable 

fabrication. Nowhere in Clark’s motion for an extension of time 

does he attempt to convey notice that he is appealing. His 

entire text is focused on having more time to file a request for 

a certificate of appealability in the district court. The 

majority’s evaluation of Clark’s “circumstances,” by which it 

speculates that “[t]here would be little reason for Clark to 

request an extension of time to properly file a certificate of 

appealability if he did not intend to appeal,” ante at 8, 

completely disregards the Supreme Court’s instructions that 

courts “should not . . . rel[y] on [petitioner’s] reasons for 

filing” because “the notice afforded by [the] document, not the 

litigant’s motivation in filing it,” is what matters, Smith, 502 

U.S. at 248 (emphasis added).
22

The effect of the majority’s holding is dramatic. Not only 

does it gratuitously rewrite Clark’s motion, but, in doing so, 

it effectively repeals the appellate rules and statutes 

governing extensions of time to file an appeal. For example, 

the decision strips district courts of their discretion to rule 

on a party’s motion for an extension of time, see Fed. R. App. 

P. 4(a)(5)(A) (“The district court may extend the time to file a 

notice of appeal” (emphasis added)); see also 28 U.S.C. 

§ 2107(c), and categorically relieves would-be appellants from 

the requirement to “show[] excusable neglect or good cause,” see

Fed. R. App. P. 4(a)(5)(A)(ii); see also 28 U.S.C. § 2107(c). 

Since every such motion for an extension of time will now be 

deemed automatically to be a notice of appeal, such factual 

showings will no longer be required. 

The majority’s holding also eliminates the requirements for 

giving notice that an appeal is being taken, thus confusing 

other parties who might wish to file a cross-appeal and who must

comply with administrative requirements of the rules that are 

based on the date the notice of appeal was filed. For instance, 

a party intending to file a cross-appeal must do so within 14 

days after the principal appeal is filed. See Fed. R. App. P. 

4(a)(3). With the majority’s holding, a party will not know 

whether another party’s request for an extension of time to file 
23

an appeal is actually an appeal and thereby might lose its right 

to appeal. 

And as a corollary, the majority’s holding destroys any

clarity as to whether appellate courts have jurisdiction. Cf.

Bowles, 551 U.S. at 208 (explaining that “[d]istrict courts have 

limited authority to grant an extension of the 30-day time 

period” governing notices of appeal and holding that the court 

of appeals lacked jurisdiction over an appeal because, even 

though the notice of appeal was filed within the time period 

specified by the district court, that time period exceeded the 

period permitted by 28 U.S.C. § 2107 and Federal Rule of 

Appellate Procedure 4(a)(6)).

Finally, the majority’s holding that courts must read 

motions for extensions of time as notices of appeal will 

interfere with principles of finality. It is easy to imagine a 

scenario in which a party files a timely request for an 

extension of time to note an appeal, which the district court 

denies, and the 30-day time period for taking an appeal lapses 

without the party having filed a notice of appeal. Even if the 

opposing party and the court initially have notice that the 

movant intended to file an appeal in the future, such notice 

dissipates when Rule 4(a)(1)(A)’s 30-day time limit lapses and 

the opposing party and the court rationally assume that the 

would-be appellant elected not to file the appeal. Under the 
24

majority’s decision, however, the party who filed the motion for 

an extension could eventually pursue the appeal long after the 

30-day time period has ended, to the surprise of the opposing 

party and the court, by relying on his motion for an extension 

of time as his notice of appeal. Similar confusion would result 

if the district court granted the appellant’s motion for an 

extension of time. Under the majority’s new rule, if the 

appellant failed to file his appeal within the extended time, 

the resulting expectation of the opposing party and the court 

that the appellate court lacked jurisdiction and that the 

proceeding had ended would be in error, as the appellant could 

proceed at any point simply on the basis of his earlier request 

for an extension of time.

At bottom, there is no limiting principle in the majority’s 

holding. With it, a court could even construe a petitioner’s 

§ 2254 petition for habeas relief or his motion for 

reconsideration of an order denying habeas relief to reveal an 

intent to appeal and therefore to constitute a notice of appeal 

under Rule 3, based on the logic that a prisoner’s 

“circumstances” often provide “little reason” not to appeal any 

adverse ruling. Ante at 8.

Until now, we have never applied the functional equivalency 

test so liberally as to eliminate the substantive requirements 

of Federal Rule of Appellate Procedure 3. While we have 
25

permitted imperfections in the notice of appeal, we have done so 

only when the document provided definite notice of the party’s 

present intent to appeal. See, e.g., Jackson v. Lightsey, 775 

F.3d 170, 175-76 (4th Cir. 2014) (construing a document 

purporting to be a notice of appeal as such even though it 

lacked the words “Fourth Circuit”); In re Spence, 541 F.3d 538, 

543 (4th Cir. 2008) (construing a document purporting to be a 

notice of appeal to pertain to the district court’s final order 

even though it designated only the district court’s order 

denying the motion for rehearing); Dang v. C.I.R., 259 F.3d 204, 

207-08 (4th Cir. 2001) (construing the appellant’s notice of 

appeal to include issues not specifically designated). 

To be sure, Federal Rule of Appellate Procedure 3(c)(4) 

tolerates “informality of form or title of the notice of 

appeal,” but the Rule cannot be read to “waive” the substantive 

requirements of Rule 3(c), which function as a “jurisdictional 

threshold.” Torres, 487 U.S. at 314-17. This jurisdictional 

threshold requires that a notice of appeal be sufficient to 

“ensure that the filing provides sufficient notice to other 

parties and the courts,” Smith, 502 U.S. at 248, that the 

appellant is “taking the appeal,” Fed. R. App. P. 3(c)(1)(A) 

(emphasis added). Because Clark’s motion for an extension of 

time to request a certificate of appealability does not provide 

that notice, we must dismiss this appeal for lack of 
26

jurisdiction because the only notice of appeal that Clark filed 

was untimely.