FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WESLEY HARLAN KINGSBURY,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

No. 16-56789

D.C. Nos.

2:15-cv-09697-DSF

2:12-cr-00903-DSF-3

OPINION

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted July 10, 2018

Pasadena, California

Filed August 21, 2018

Before: D. Michael Fisher,* Paul J. Watford, and 

Michelle T. Friedland, Circuit Judges.

Per Curiam Opinion

 * The Honorable D. Michael Fisher, United States Circuit Judge for 

the U.S. Court of Appeals for the Third Circuit, sitting by designation.
2 KINGSBURY V. UNITED STATES

SUMMARY**

28 U.S.C. § 2255

The panel held that Federal Rule of Civil Procedure 58’s 

requirement that a separate document be filed upon entry of 

judgment applies in proceedings under 28 U.S.C. § 2255.

The panel concluded that the petitioner’s notice of appeal 

was therefore timely, and that this court has jurisdiction over 

his appeal. In a concurrently filed order, the panel granted 

in part the petitioner’s request for a certificate of 

appealability and set a briefing schedule.

COUNSEL

Stephanie Marie Adraktas (argued), Berkeley, California, 

for Petitioner-Appellant.

Christopher Jackson Smith (argued) and Michael A. Rotker, 

Attorneys; John P. Cronan, Acting Assistant Attorney 

General; Appellate Section, Criminal Division, United 

States Department of Justice, Washington, D.C.; for 

Respondent-Appellee.

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
KINGSBURY V. UNITED STATES 3

OPINION

PER CURIAM:

After pleading guilty to fraud-related charges and being 

sentenced, Wesley Kingsbury filed a motion under 28 U.S.C. 

§ 2255 seeking to vacate his guilty plea and sentence. The 

district court denied that motion, but it did not enter 

judgment in a separate document.

Kingsbury filed a notice of appeal just over two months 

after the district court denied his § 2255 motion. Whether 

his notice of appeal was timely depends on whether Federal 

Rule of Civil Procedure 58’s requirement that a separate 

document be filed upon entry of judgment applies in § 2255 

proceedings. The parties here agree that Rule 58’s separate 

document requirement does apply, but because this question 

determines whether we have appellate jurisdiction over 

Kingsbury’s appeal, we must resolve it ourselves. See WMX 

Techs., Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997) 

(en banc). We now join the majority of our sister circuits in 

holding that Rule 58’s separate document requirement 

applies in § 2255 proceedings. Kingsbury’s notice of appeal 

was therefore timely, and we accordingly have jurisdiction 

over his appeal.

I.

Kingsbury pled guilty to one count each of conspiracy to 

commit health care fraud, conspiracy to obstruct a Medicare 

audit, and making a materially false statement to law 

enforcement officers. He was sentenced to 78 months in 

prison. Kingsbury appealed his convictions and sentence but 

voluntarily dismissed his appeal before filing an opening 

brief.
4 KINGSBURY V. UNITED STATES

Kingsbury then filed a pro se sworn motion under 

28 U.S.C. § 2255, seeking to vacate his conviction and 

sentence on several grounds, including that his counsel was 

ineffective and that his guilty plea was not knowing, 

voluntary, and intelligent. The district court denied the 

motion and declined to issue a certificate of appealability. 

But it did not file a document entering judgment separate 

from its order denying the § 2255 motion. Kingsbury filed 

a pro se notice of appeal, which also serves as a request for 

a certificate of appealability, see 9th Cir. R. 22-1(d), 64 days 

after the district court denied his motion.

Unsure whether the notice of appeal had been filed in 

time to give us jurisdiction, we appointed counsel and 

ordered briefing so we could “determine whether entry of a 

separate judgment is required in section 2255 proceedings 

and whether this court has jurisdiction over appellant’s 

request for a certificate of appealability.” Our order 

recognized that it was “an open question in this Circuit as to 

whether Fed. R. Civ. P. 58(a) requires the entry of judgment 

on a separate document when a district court enters an order 

denying relief in 28 U.S.C. § 2255 proceedings,” that 

“[o]ther Circuits are split on this issue,” and that “[i]f entry 

of a separate judgment [were] required, appellant’s notice of 

appeal was timely.”

II.

Section 2255 proceedings are governed by procedural 

rules developed by the Supreme Court and adopted by 

Congress. See generally Rules Governing Section 2255 

Proceedings for the United States District Courts. Those 

rules set the time for the losing party to appeal from the 

district court’s disposition of § 2255 motions. Rule 11 of the 

Rules Governing Section 2255 Proceedings for the United 

States District Courts (“Rule 11”) states that “Federal Rule 
KINGSBURY V. UNITED STATES 5

of Appellate Procedure 4(a) governs the time to appeal an 

order entered under these rules.” Federal Rule of Appellate 

Procedure 4(a), in turn, states that a notice of appeal must be 

filed “within 60 days after entry of the judgment or order 

appealed from” when the United States is a party, Fed. R. 

App. P. 4(a)(1)(B), and that a judgment or order is entered 

for purposes of Rule 4(a) when it is entered in compliance 

with Rule 58(a) of the Federal Rules of Civil Procedure, Fed. 

R. App. P. 4(a)(7).1 Under Rule 58, an order that is 

dispositive of the proceedings is usually insufficient to enter 

judgment. Fed. R. Civ. P. 58(a). Instead, judgment must be 

expressly entered in a “separate document,” except when the 

district court decides certain listed motions—which do not 

include § 2255 motions.2 Fed. R. Civ. P. 58(a), (c)(2)(A). If 

a separate document is required, and one is not filed, 

judgment is entered automatically 150 days after the court 

enters an order disposing of a case. Fed. R. Civ. P. 

58(c)(2)(B).

Integral to the time for appeal in Rule 4, therefore, is the 

event that starts the time in which a party can appeal—

specifically, either the filing of a separate document entering 

 1 Federal Rule of Appellate Procedure 4 also provides that the entry 

of judgments or orders must comply with Federal Rule of Civil 

Procedure 79(a), which, in turn, offers guidance to district court clerks 

on how to enter judgments and orders on the docket. Fed. R. App. P. 

4(a)(7).

2 Precisely what constitutes a “separate document” is not at issue 

here. There is no dispute that, if Rule 58’s separate document 

requirement applies, the order denying Kingsbury’s § 2255 motion was 

not a separate document within the meaning of that rule because it 

contained substantial discussion of the law and facts. See Vernon v. 

Heckler, 811 F.2d 1274, 1276 (9th Cir. 1987).
6 KINGSBURY V. UNITED STATES

judgment or the passage of 150 days. See United States v. 

Johnson, 254 F.3d 279, 284 (D.C. Cir. 2001) (“Nothing in 

the language of Rule 11 . . . suggests that courts should apply 

Rule 4(a)’s time limit without also applying its criterion for 

determining when that limit begins to run.”). Taken 

together, these rules suggest that Rule 58’s separate 

document requirement applies to § 2255 proceedings.3

The advisory committee notes accompanying Rule 11 

further support this conclusion. Those notes cite United 

States v. Hayman, 342 U.S. 205 (1952), for the proposition 

that appeals from orders denying § 2255 motions “are 

governed by the civil rules applicable to appeals from final 

judgments in habeas corpus actions”—writ actions that are 

available, for example, to challenge state custody under 28 

U.S.C. § 2254 but that have been almost entirely supplanted 

by the motions mechanism of 28 U.S.C. § 2255 in challenges 

to federal custody. See Rule 11, advisory committee’s note 

to 1979 amendment (quoting Hayman, 342 U.S. at 209 n.4). 

Those civil rules applicable to appeals from district courts’ 

resolution of habeas corpus petitions include the separate 

document requirement of Rule 58. See, e.g., Mitchell v. 

Idaho, 814 F.2d 1404, 1405–06 (9th Cir. 1987).

Requiring entry of judgment in a separate document 

under Rule 58 to start the clock on the 60-day time to appeal 

is also consistent with the rule’s goal to demarcate the time 

 3 As mentioned above, the parties here are in agreement that Rule 

58’s separate document requirement applies to § 2255 proceedings. 

Indeed, since at least 2001, the Government appears to have “taken the 

position that Rule 58 applies” in this circumstance. See Johnson, 

254 F.3d at 283 n.2. But the parties’ agreement does not eliminate the 

need to independently assess whether we have jurisdiction. See WMX 

Techs., Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997) (en banc).
KINGSBURY V. UNITED STATES 7

to appeal more clearly. See Fed. R. Civ. P. 58, advisory 

committee’s note to 1963 amendment (describing the rule as 

“eliminat[ing] [prior] uncertainties by requiring that there be 

a judgment set out on a separate document”). Many 

defendants—like Kingsbury here—proceed pro se on 

collateral review and particularly benefit from greater clarity 

on procedural requirements.4 Cf. Rand v. Rowland, 154 F.3d 

952, 958 (9th Cir. 1998) (en banc) (interpreting the Federal 

Rules of Civil Procedure as mandating notice to pro se 

prisoner litigants regarding the requirements of the summary 

judgment rule because that reading “effectuates the purpose 

of the Federal Rules to eliminate ‘procedural booby traps’ 

which could prevent ‘unsophisticated litigants from ever 

having their day in court’” (quoting Surowitz v. Hilton 

Hotels Corp., 383 U.S. 363, 373 (1966))).

 4 We recognize that § 2255 motions are similar in some ways to 

motions under Federal Rule of Civil Procedure 60, and that the time to 

appeal from the disposition of Rule 60 motions runs from the entry of 

the order, not from the filing of a separate document entering judgment. 

See Fed. R. Civ. P. 58(a)(5). But Federal Rule of Civil Procedure 58 lists 

the five types of orders after which no separate document is required to 

start the time to appeal. Orders on Rule 60 motions are listed. Orders 

on § 2255 motions are not. And Rule 11 did not say anything to 

effectively add them to that list. Holding that motions similar to those 

listed are included by implication, in the absence of any indication that 

the list was intended to be non-exclusive, would create exactly the sort 

of murkiness about the time to appeal that Rule 58 was intended to avoid.

See United States v. Indrelunas, 411 U.S. 216, 221–22 (1973) (per 

curiam) (explaining that “the separate document provision of Rule 58 is

. . . a mechanical change that must be mechanically applied in order to 

avoid new uncertainties as to the date on which a judgment is entered” 

(internal quotation marks and citation omitted)), abrogated in part on 

other grounds by Bankers Tr. Co. v. Mallis, 435 U.S. 381, 386 n.7 (1978) 

(per curiam).
8 KINGSBURY V. UNITED STATES

The majority of circuits to have considered the question 

agree that Rule 58’s separate document requirement applies 

to § 2255 proceedings. The Third, Fifth, Sixth, Eighth, and 

D.C. Circuits have all reached this conclusion.5 See Gillis v. 

United States, 729 F.3d 641, 643 (6th Cir. 2013); Jeffries v. 

United States, 721 F.3d 1008, 1012–13 (8th Cir. 2013); 

United States v. Fiorelli, 337 F.3d 282, 285–87 (3d Cir. 

2003); Johnson, 254 F.3d at 283–85; Sassoon v. United 

States, 549 F.2d 983, 984 (5th Cir. 1977).

Only the Second Circuit has held otherwise, grounding 

its reasoning in the observation that “a motion under § 2255 

is a further step in the movant’s criminal case and not a 

separate civil action.” Williams v. United States, 984 F.2d 

28, 30 (2d Cir. 1993) (quoting Rule 11, advisory 

committee’s note to 1979 amendment). It is true that Rule 

58 is a civil rule and that § 2255 proceedings have some 

procedural characteristics that might appear to weigh against 

application of the civil rules. But given the specific wording 

of the applicable rules, which indicate that the civil 

requirements for the time to appeal apply here, we do not 

need to reach a conclusion about the civil or criminal nature 

of § 2255 proceedings generally.

We therefore join the majority of our sister circuits in 

holding that Rule 58’s separate document requirement 

applies to § 2255 proceedings. If a separate document 

entering judgment is filed with the order resolving a § 2255 

 5 The Seventh Circuit at one point seemed to have held that Rule 

58’s separate document requirement applied to § 2255 appeals. See 

Hope v. United States, 43 F.3d 1140, 1142 & n.1 (7th Cir. 1994); see 

also Morales v. Bezy, 499 F.3d 668, 671 (7th Cir. 2007). But the Seventh 

Circuit has since stated that it has not decided the question, 

notwithstanding Hope. See Lawuary v. United States, 669 F.3d 864, 866 

(7th Cir. 2012).
KINGSBURY V. UNITED STATES 9

motion, the losing party has 60 days to file a notice of appeal. 

Otherwise, it has 60 days from when judgment is 

automatically entered 150 days after the filing of the order, 

for a total of 210 days.

III.

As described above, the district court did not file a 

separate document entering judgment under Rule 58 after 

denying Kingsbury’s § 2255 motion. If a separate document 

were not required, the notice of appeal Kingsbury filed 

64 days after the order denying his § 2255 motion would 

have been 4 days late, and we would have been deprived of 

appellate jurisdiction. See Fed R. App. P. 4(a).6

But because Rule 58’s separate document requirement 

applies, final judgment was entered as of 150 days after the 

district court denied the § 2255 motion. Fed R. Civ. P. 

58(c)(2)(B). Kingsbury filed his notice of appeal during 

those 150 days, so his notice was timely. See Fed. R. App. 

P. 4(a)(2) (“A notice of appeal filed after the court 

announces a decision or order—but before the entry of the 

judgment or order—is treated as filed on the date of and after 

the entry.”); FirsTier Mortg. Co. v. Inv’rs Mortg. Ins. Co., 

498 U.S. 269, 273 (1991) (observing that Federal Rule of 

Appellate Procedure 4(a)(2) “recognizes that, unlike a tardy 

notice of appeal, certain premature notices do not prejudice 

 6 The time to appeal in Rule 4(a) is set by statute. See 28 U.S.C. 

§ 2107(a)–(b). As statutory time limits, Rule 4(a)’s deadlines are 

jurisdictional. See Bowles v. Russell, 551 U.S. 205, 212–13 (2007). We 

have held that Rule 4(a)’s deadlines are jurisdictional in § 2255 

proceedings. See United States v. Hayat, 710 F.3d 875, 903 (9th Cir. 

2013) (holding that we “lack[ed] jurisdiction to review the district 

court’s dismissal of [a defendant’s] § 2255 motion” when he “did not 

timely file a notice of appeal”).
10 KINGSBURY V. UNITED STATES

the appellee and that the technical defect of prematurity 

therefore should not be allowed to extinguish an otherwise 

proper appeal”).

IV.

For the forgoing reasons, we have jurisdiction over 

Kingsbury’s appeal.

We GRANT in part Kingsbury’s request for a 

certificate of appealability and set a briefing schedule in a

concurrently filed order.