United States Court of Appeals

Fifth Circuit

FILED

June 7, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

05-70058

ANGEL MATURINO RESENDIZ,

Petitioner-Appellant,

v.

DOUG DRETKE, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent-Appellee.

Appeal from the United States District Court for the

Southern District of Texas, Houston

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

Petitioner-Appellant, Angel Maturino Resendiz, was convicted

of capital murder in Texas and sentenced to death. After the Texas

Court of Criminal Appeals affirmed his conviction and sentence and

denied post-conviction relief, Resendiz filed a petition for writ

of federal habeas corpus. The district court denied relief. On

appeal, the sole issue is whether the motion to reopen the time for

filing a notice of appeal was timely under the Federal Rules of

Appellate Procedure. Because we conclude that the motion was
1 Along with the motion, counsel filed a notice of appeal.

2

untimely, the appeal is dismissed for lack of jurisdiction.

I. PROCEDURAL HISTORY

The only history relevant to the issue before us is with

respect to Resendiz’s federal habeas petition. On May 3, 2005,

Resendiz, represented by counsel, filed a petition for federal

habeas relief. Relying on, among other cases, Apprendi v. New

Jersey, 530 U.S. 466 (2000), he argued that it was unconstitutional

for a defendant to have the burden of proving circumstances that

mitigate against the death penalty. On May 23, the Respondent

filed a motion for summary judgment. On September 7, the district

court denied relief and entered final judgment. That same day, a

docket entry indicates that the parties were notified. 

On November 15, counsel for Resendiz filed a motion to reopen

the time to file a notice of appeal or, in the alternative, a

request to extend the time to file a notice of appeal.1 In the

motion, counsel admitted that he received notice of the judgment in

the mail “shortly after” it was entered. Counsel further stated

that on November 10, he visited Resendiz in prison and notified

Resendiz for the first time of the judgment. Resendiz indicated

that he wished to appeal. Also, counsel asked the court not to

impute his failure to file a notice of appeal to Resendiz. On

November 16, the Mexican Consul General filed a letter requesting

that the case be reopened. On November 21, the Respondent filed a
2 Subsequently, Resendiz obtained new counsel who also filed

a notice of appeal.

3 Subsection 6 was amended subsequent to the November 22

denial of the instant motion to reopen. Effective December 1,

2005, subsection (6) was amended “to specify more clearly what type

3

response in opposition to Resendiz’s motion to reopen. On November

22, Resendiz filed a reply to the Respondent’s opposition. That

same day, the district court denied Resendiz’s motion.2

On December 12, this Court issued an order directing counsel

for Resendiz to show cause whether the district court correctly

denied the motion to reopen the time to file a notice of appeal,

and if so, whether the appeal should be dismissed as untimely.

Resendiz, through counsel, and the Respondent have responded to the

show cause order.

II. ANALYSIS

Rule 4 of the Federal Rules of Appellate Procedure governs

this case and instructs that “the notice of appeal required by Rule

3 must be filed with the district clerk within 30 days after the

judgment or order appealed from is entered.” Rule 4(a)(1). Here,

the record establishes, and Resendiz does not dispute, that the

notice of appeal was not filed within the 30-day period. This

Court has explained that Rule 4 has two avenues “for rescuing [an]

appeal through a late-filed notice of appeal.” Wilkens v. Johnson,

238 F.3d 328, 330 (5th Cir. 2001). These two avenues are set forth

in Rule 4(a)(5)-(6) as follows:3
of ‘notice’ of the entry of a judgment or order precludes a party

from later moving to reopen the time to appeal . . . [and] to

address confusion about what type of ‘notice’ triggers the 7-day

period to bring a motion to reopen.” Advisory Committee’s Notes on

2005 Amendments to Fed. R. App. P. 4(a)(6). More specifically, the

amendments clarify that unless consented to otherwise, only formal

service pursuant to Federal Rules of Civil Procedure 77(d) and 5(b)

constitutes notice. 

4

(5) Motion for Extension of Time.

(A) The district court may extend the time to file

a notice of appeal if:

(i) a party so moves no later than 30 days after

the time prescribed by this Rule 4(a) expires[.]

. . . . 

(6) Reopening the Time to File an Appeal.

The 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 all the following

conditions are satisfied:

(A) the motion is filed within 180 days after the

judgment or order is entered or within 7 days after the

moving party receives notice of the entry, whichever is

earlier;

(B) the court finds that the moving party was

entitled to notice of the entry of the judgment or order

sought to be appealed but did not receive the notice from

the district court or any party within 21 days after

entry; and

(C) the court finds that no party would be

prejudiced.

Resendiz admits, as he must, that his lawyer did not file a

motion for extension until after the sixty-day period under Rule

4(a)(5)(A)(i) had expired. Thus, the only potential avenue of
4 “Rule 4(a)(6) allows the district court to grant relief if

the specified requirements are satisfied, but the rule does not

require the district court to grant the relief, even if the

requirements are met.” Jones v. W.J. Services, Inc., 970 F.2d 36,

39 (5th Cir. 1992). 

5

relief remaining is pursuant to Rule 4(a)(6).4 Resendiz agrees,

recognizing that the “determinative question” is whether he was

“entitled to notice of the entry of the judgment or order sought to

be appealed from but did not receive the notice from the district

court.” (Resendiz Response 6 (quoting Fed. R. App. P. 4(a)(6)).)

In other words, in an attempt to fall under the saving provision in

Rule 4(a)(6), Resendiz asserts that the notice his counsel received

did not constitute sufficient notice because counsel abandoned him,

failing to either timely inform him of the judgment or to file a

notice of appeal. 

As Resendiz recognizes, this Court has stated that the sevenday window in Rule 4(a)(6) for the filing of a motion to reopen

after notice of the judgment may be triggered by “[a]ny written

notice of entry received by the potential appellant or his counsel

(or conceivably by some other person).” Wilkens, 238 F.3d at 332

(footnote omitted). Resendiz argues that this language is dictum

because there was no argument in Wilkens that counsel received

notice at a different time than the petitioner. 

Although Wilkens did not involve the precise issue at bar, it

certainly informs this case. In Wilkens, as in the instant case,

the petitioner was convicted of capital murder in Texas and
5 The Respondent did not challenge jurisdiction. Indeed, the

Respondent “filed a ‘Non-Opposition to Petitioner’s Out-of-Time

Appeal’ declining, ‘in the interest of justice,’ to oppose

appellate review of the district court’s judgment.” Id. at 330. 

6

awaiting execution. Id. at 329. On June 18, 1999, the district

court entered judgment denying Wilkens’s federal habeas petition.

Although the docket sheet indicated that the clerk had mailed

copies of the judgment to the attorney of record that same day,

Wilkens’s counsel claimed that he never received a copy in the

mail. Counsel averred that his first notice of the judgment was

September 7, when, at the request of the court’s staff attorney, a

copy was “faxed” to him Id. A docket entry provides that Wilkens

filed a motion for leave to file a late notice of appeal on October

4. The district court granted the motion to reopen.

In Wilkens, this Court, sua sponte, raised the question of

appellate jurisdiction.5 Recognizing that a timely notice of

appeal “is a mandatory precondition to the exercise of appellate

jurisdiction,” we explained that we must determine the validity of

the district court’s order granting Wilkens’s leave to file the

notice of appeal almost four months after judgment was entered.

Id. at 330. As mentioned previously, Rule 4 has two saving

provisions for notices of appeal filed beyond the 30-day time

limit: Rule 4(a)(5) extends the time for filing; and Rule 4(a)(6)

reopens the time in which to file. As in the case at bar, because

Wilkens did not file within sixty days of entry of judgment, Rule
6 It appears that the previously noted 2005 amendments to

Rule 4(a)(6), which now expressly require formal service, supersede

the holding that a facsimile constitutes sufficient notice—unless

there has been consent. See supra at n.2. 

7

4(a)(5) was not available to him, leaving the reopening provision

of Rule 4(a)(6) as the only potential avenue for relief. Id. at

331. 

As quoted previously, subsection (A) of Rule 4(a)(6) requires

that the motion to reopen be filed within 180 days of judgment or

within seven days after receiving notice, whichever is earlier.

Although Wilkens’s motion had been filed prior to the expiration of

the 180-day limit, it was not filed within seven days of receiving

the facsimile copy on September 7. Therefore, the case hinged on

whether the faxed notice qualified as notice of entry of the

judgment for the purpose of triggering subsection (A)’s seven-day

filing window. Id. at 331-32. Ultimately, after observing that

(1) the rule did not describe the words “receive” or “notice” and

(2) other circuits had not required formal service as set forth in

Rules 5(b) and 77(d) of the Federal Rules of Civil Procedure, this

Court concluded that the plain wording of the rule indicated that

the faxed copy constituted sufficient notice to trigger the sevenday window for filing. Id. at 333-36.6 As a result, the late

notice of appeal was a nullity, leaving this Court with no

appellate jurisdiction over Wilkens’s habeas petition. 

Of course, in the instant case, the issue is not a challenge
7 Resendiz also relies in part on the Advisory Committee’s

Notes regarding the court’s “general authorization to relieve

litigants of the consequences of default.” Advisory Committee’s

Notes on 1967 Adoption of Fed. R. App. P. 2. However, this Court

has rejected the proposition that these notes afford the power to

extend the time to file a notice of appeal. Wilkens, 238 F.3d at

334 n.29. Indeed, the advisory notes provide that Federal Rule of

Appellate Procedure 26(b) prohibits appellate courts from extending

the time for filing an appeal. 

8 Rule 77(d) of the Federal Rules of Civil Procedure provides

that “[i]mmediately upon the entry of an order or judgment the

clerk shall serve a notice of the entry in the manner provided for

in Rule 5(b) upon each party. . . .” Rule 5(b) provides that if a

party is represented by counsel, service is to be made upon

counsel. Rule 5(b) also sets forth the methods of service, such as

hand delivery or by mail. It provides that a person may consent to

other means of delivery, including electronic means. 

8

to the method of service but a challenge to the sufficiency of

service in light of counsel’s failure to communicate the notice or

act upon it. In any event, Wilkens makes clear that unless a Rule

4(a)(6) motion is filed timely, “the court is powerless to reopen

the time for filing” a notice of appeal. Id. at 331.7

Resendiz argues that the district court erred in relying on

Rules 5(b) and 77(d) of the Rules of Civil Procedure in finding

that service on counsel was sufficient notice because Wilkens’s

“core” holding rejected reliance on those formal rules of service.8

(Response 9-10). That case, however, does not support Resendiz.

Although Wilkens did recognize that the plain language of theneffective Rule 4(a)(6) did not reference Rules 5(b) or 77(d) or

describe the type of notice required, that meant any written notice

received by either counsel or the client was sufficient. Wilkens,
9 This Court noted that the Second Circuit had held that when

a party is represented by counsel, counsel must be the one

notified. Id. at 332 n.17 (citing Ryan v. First Unum Life Ins.

Co., 174 F.3d 302 (2d Cir. 1999)). Although we did not “perceive”

that additional requirement, we recognized that the issue was not

before us. Id. 

9

238 F.3d at 332.9 Wilkens’s interpretation of Rule 4(a)(6) offers

Resendiz no succor in that it is a more lenient standard for

finding sufficient notice. 

The above discussion brings us back to the general rule, which

Resendiz apparently concedes, that “courts ordinarily deem a party

represented by counsel ‘to have notice of all facts, notice of

which can be charged upon the attorney.’” (Resendiz Response 10

(quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S.

380, 397 (1993)).) Resendiz acknowledges the general rule and

argues that his case warrants an exception. The thrust of his

argument is that his counsel had abandoned him and thus, notice to

counsel could not be imputed to him.

In an attempt to persuade this Court to recognize an exception

to the general rule, Resendiz quotes an excerpt from an opinion of

this Court in which we discussed cases that held that the time to

file a notice of appeal does not begin to run until a pro se party

is notified either of the entry of judgment or his right to appeal.

(Resendiz Response 12 (quoting Nelson v. Foti, 707 F.2d 170, 171

(5th Cir. 1983)).) Resendiz, however, neglects to put this

discussion in context. Indeed, the language immediately preceding
10 Nelson involved an earlier version of Rule 4(a). Id.

There, the provision at issue stated that a party had sixty days

from the date of judgment to move the district court to excuse the

delay. Nelson was a pro se federal habeas petitioner who did not

receive notice of the entry of judgment until after the time to

move for an extension of time to file a notice of appeal. The

district court granted Nelson’s request to file a notice of appeal.

This Court, relying on Rule 77(d)’s instruction that a late notice

of appeal can only be allowed as permitted by Rule 4(a), dismissed

for lack of jurisdiction. 

11 Resendiz also relies on other circuit precedent in which

there were exceptions to the rule of imputation. However, none

involve the jurisdictional context of Rule 4(a)(6). Resendiz cites

a district court order granting a Rule 4(a)(6) motion to reopen

because counsel’s “actions prevented useful notice in this case,

rendering Petitioner effectually without counsel.” Plata v.

Cockrell, No. H-01-2587, Memorandum and Order (S.D. Tex., Nov. 18,

2002) (unpublished). Such authority is not binding and conflicts

with our circuit court precedent.

10

and subsequent to the quoted excerpt explains that prior to the

1979 amendments to Rule 4(a), this Circuit “carved out an exception

to this seemingly jurisdictional bar for litigants proceeding pro

se.” Nelson, 707 F.2d at 171. Subsequent to the 1979 amendments

to Rule 4(a), this Court has “adhered strictly to its mandate.”

Id.10 Moreover, Resendiz does not cite, and we are not aware of,

any subsequent Fifth Circuit precedent allowing an exception to the

mandate of Rule 4(a).11

Here, the district court found, and we agree, that Resendiz

has not shown that counsel abandoned him. In the district court,

counsel filed a federal habeas petition on Resendiz’s behalf and,

after meeting with Resendiz, moved, albeit untimely, to reopen the

period for filing a notice of appeal. If counsel’s failure to file
12 Additionally, in Vahan v. Shalala, 30 F.3d 102, 103 (9th

Cir. 1994), the Ninth Circuit held that it lacked jurisdiction

under Rule 4(a)(6)) because the motion was not filed within seven

days after counsel received notice. Although unclear, it appears

Vahan may have raised the same argument as Resendiz. Id. (“Vahan

argues that the district court acted within its discretion in

granting an extension because Vahan, through no fault of his own,

did not receive notice of the district court’s final judgment.”).

11

a timely notice of appeal constitutes abandonment, then Resendiz’s

argument would allow an end run around the requirements set forth

in Rule 4(a)(6). Stated another way, the proposed exception would

swallow the rule. In any event, because we conclude Resendiz has

not shown he was abandoned by counsel, we do not reach the question

of whether notice may be imputed to a party who, though technically

represented, is abandoned by counsel. We hold that the district

court correctly found that the notice received by counsel was

imputed to Resendiz, which renders the Rule 4(a)(6) motion to

reopen untimely. Our holding is consistent with other circuits’

interpretations of Rule 4(a)(6). Herrera v. I.N.S., 2 Fed.Appx. 603

(8th Cir. 2001) (unpublished) (holding no appellate jurisdiction

because although § 2241 habeas petitioner did not “personally

receive notice,” the notice to counsel constituted notice to

petitioner and thus, the Rule 4(a)(6) motion was untimely); cf.

Marcangelo v. Boardwalk Regency, 47 F.3d 88 (3d Cir. 1995) (holding

that Rule 4(a)(6) did not allow relief when local counsel failed to

communicate the notice of judgment to the client’s principal

counsel, who was out of state).12
13 As previously set forth, the district court denied relief

on the merits of Resendiz’s Apprendi claim that it was

unconstitutional to place the burden of proof on a defendant to

prove circumstances in mitigation of the death penalty. The

district court explained that, prior to considering the mitigation

evidence, “the jury has already found an aggravating factor beyond

a reasonable doubt in the eligibility portion of trial (and a

second aggravating factor through the future dangerousness

inquiry), thus authorizing a capital sentence. The maximum

punishment available then is death.” (Memorandum at 6 (footnote

omitted).) Although our lack of jurisdiction precludes us from

making a determination on the merits of the sole claim raised in

his federal petition, the district court’s analysis appears

compelling.

12

Accordingly, in conclusion, we find counsel’s delay in filing

the motion to reopen the time to file a notice of appeal resulted

in a lack of appellate jurisdiction. Therefore, we must dismiss

the appeal.13

DISMISSED.