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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

__________

No. 10

- 2866

__________

UNITED STATES OF AMERICA

v.

CORBIN THOMAS
a/k/a
JACK
a/k/a
PATRICK
a/k/a
FRANCIS WAL COTT

Corbin Thomas

, Appellant

__________
On Appeal from the United States District Court
for the Eastern Distric t of Pennsylvania (Crim. No. 2

- 98

- cr

- 00136

- 001) District Judge: Honorable J. Curtis Joyner

___________
Submitted Under Third Circuit L.A.R. 34.1(a) September 24, 2012

___________

Before: McKEE, Chief Judge

, JORDAN and VANASKIE

, Circuit Judges

( Opinion Filed: April 10, 2013 )2 Patrick J. Conno rs , Esq. 11 West Third Street Media, Pennsylvania 19063 Counsel for Appellant

Robert K. Reed, Esq.
Robert A. Zauzmer , Esq. Office of the United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 Counsel for Ap pellee

___________

OPINION

__________

McKEE, Chief Judge

Corbin Thomas appeals the District Court’s order denying his motion for an extension of time to file a motion
for reli ef pursuant to 28 U.S.C. § 2255, and requests a certificate of appealabilit y (“COA”) pursuant to 28 U.S.C. §
2253. For the reasons discussed below, we will grant Thomas’ request for a COA 1

1 We assume, without deciding, that a COA is required to appeal from the District Court’s order denying Thomas’
motion for an extension of time. Cf. Miller

- El v. Cockrell

, 537 U.S. 322, 336 (2003) (“unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals . . .”) (quoting 28 U.S.C. § 2253(c)(1)). Because we ultimately conclude that issues raised in this appeal warrant appellate review, we grant Thomas’ request for a COA. See Miller

- El , 537 U.S. at 336 (“Under the controlling standard, a petitioner must show . . . that the issues presented were adequate to de serve encouragement to proceed further.”) (internal quotation omitted). See also infra pp. 16

- 17 (addressing Thomas’ request to convert COA application into § 2255 motion for relief). and affirm the District Court’s
order denying his motion for an extension of time

.3 I.

From 1990 to 1995, Thomas was the director of a
crim inal enterprise that transported thousands of pounds of marijuana from California to Pennsylvania. Thomas’ wife was murdered in 1995, and later that year he fled from the
United States to Jam aica . On March 25, 1998, a federal grand jury returned a 33

- cou nt indictment against Thomas
bas ed on his marijuana enterprise. In November 2001, Thomas was arrested in the United Kingdo m pursuant to a provisional extradition warrant . He contested that warrant
until 2005. During April of that year, he was finally br ought
before the D istrict Court for prosecution on the charges contained in the 1998 indictment. He was subsequently
convicted of numerous offenses and sentenced to a total of 420 months imprisonment. We affirmed on direct appeal

, and on June 15, 2009 th e United States Supreme Court denied
Thomas’ petition for certiorari

.

As a federal prisoner, Thomas could file a motion to vacate, set aside or correct his sentence in the District Court within one year from denial of certiorari. See 28 U.S.C. §
2255 (f)

. However, during that period

, Thomas was temporarily transferred to state custody

, convicted of his wife’s murder

, and s entenced to life imprisonment. Specifically, Thomas was in state custody at the time his certiorari petition in this case was denied (June 15, 2009), he
remained there until August 4, 2009 (a period of approximately 50

- days), and was again in state custody from February 25, 2010 until May 6, 2010 (a period of approximately 80

- days). On May 24, 2010, approximately three weeks before Tho mas’ deadline for filing a motion for
relief under § 2255

, he filed a pro se motion for a 120

- day extension of time. He argued that extr a time was warranted
because he was in state custody without access to legal materials needed to prepare his § 2255 mot ion for over 120

- days during the one year limitations period

.

On June 7, 2010, the District Court entered an order denying Thomas’ motion for an extension of time

. In doing so, it explained, in a footnote, that Thomas “failed to demonstrate why the one (1) year period of limitation should4 not apply under 28 U.S.C. 2255(f).” See United States v.
Thomas , No. 98

- CR

- 00136

- 001 (E.D. Pa. June 7, 2010) (order denying motion for an extension of time)

.

Thomas appealed that order, but h e n ever filed an actual m otion for relief under § 2255

. Instead, he submitted an application for a certificate of appealability (“COA”) to the
District Court in an effort to again appeal its denial of his
motion for an extension of time . Thomas’ COA application
restated that he had been in state custody without access to legal materials, and also asserted “a Batson challenge [] to the jury selection; Prosecutorial M isconduct for knowingly withholding material evidence of P etitioner’s innocence, in violation of Brady v. Maryland ; a nd Jury Misconduct.” App.
at A33

- 34; 476 U.S. 79 , 89 (1986) ; 373 U.S. 83 , 87 (1963).
The District Court did not rule on his COA application.
Rather

, it refer red his COA application to us

— apparently because Thomas’ appeal from the denial of his motion fo r extra time was pending. Accordingly, we now review the
District Court’s denial of Thomas’ motion and decide whether he should be entitled to a COA.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. However, b efore evaluating the merits of Thoma s’ appeal

, we must determine whether the District Court had jurisdiction to enter its order denying Thomas’ motion for extra time. See Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 94

- 95 (1998) (“The requirement that jurisdiction be established a s a threshold matter springs ‘ from the nature and limits of the judicial power of the United States and is inflexible and without exception. ’ ”) (quoting Mansfield, C. & L. M. Ry . Co.
v. Swan , 111 U.S. 379, 382 (1884) )

.

The judicial power of federal court s is limited to
“cases and controversies.” See U.S. C ONST

. a rt

. III

, § 2, cl. 1 ; Already, LLC v. Nike, Inc.

, -- U.S.

-- , 133 S. Ct. 721, 726 (2013) . A judicial decision rendered in the absence of a case or controversy is advisory, and federal courts lack power to render advisory opinions. See U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am.

, 508 U.S. 439, 446 (1993).5 A.

This case arises under “ [t] he Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) , [which] enacted the present 28 U.S. C. § 2254” and § 2255. Lindh v. Murphy , 521 U.S. 320, 322 (1997) . Section 225 4 gives federal courts jurisdiction to grant habeas relief to prisoners held in state custody, and § 2255 does the same for federal prisoners

. It is well

- settled that a § 2254 petition submitted by a state prisoner initiates a civil , rather than criminal, action
for relief

. See Henderson v. Frank , 155 F.3d 159, 167 (3d Cir. 1998); Browder v. Dir.

, Dep’t of Corr

. of Ill

. , 434 U.S. 257, 269 (1978) ; Ex parte Tom Tong , 108 U.S. 556 , 559

- 60 (1883) (“The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution. On the contrary, it is a new suit brought by him to enforce a civil right . . .”). 2 Ther efore , no case or controversy generally
exists before a n actual § 2254 petition is filed

. Cf. Barden v.
Keohane , 921 F.2d 476, 477 n.1 (3d Cir. 1990) (“ [J] urisdiction over a petition for a writ of habeas corpus is determined when the petition is filed

. ”) (citing Ross v. Mebane , 536 F.2d 1199 (7th Cir. 1976) )

.

How ever, courts consider , among other things, judicial

economy and the legal sophistication of pro se litigants when evaluating AEDPA matters. See, e.g., United States v. Miller

, 197 F.3d 644, 6 48 (3d Cir. 1999); Patton v. Mullin , 425 F.3d 788, 810 (10th Cir. 2005) (“In the interest of judicial economy, however, we briefly consider the merits of [appellant’s] claim .” ) (citing 28 U.S.C. § 2254(b)(2)). In light of such considerations

, mislabeled m otions

, or those preceding a formal request for substantive relief

, are sometimes recharacterized as requests for relief under
AEDPA

. See Miller , 197 F.3d at 648 ( “federal courts have long recognized that they have an obligation to look behind
the label o f a motion filed by a pro se inmate and determine

2 Ex parte Tom Tong was decided before Congress’s 1948
amendment to th e judicial code that established separate procedural postures for habeas proceedings based on state and federal court judgments

. See infra pp. 8

- 10; 108 U.S. 556.6 whether the motion is, in effect, cognizable under a different remedial statutory framework ) (referring to 28 U.S.C. § 2255) ; Mason v. Myers , 208 F.3d 414, 418

- 19 (3d Cir. 2000) (applying Miller’s rule for recharacterizing AEDPA filings to § 2254)

. 3 J urisdictional issues that may arise by exercising judicial power in the absence of a formal request for habeas
relief are thereby avoided

. See id. This appeal is a matter of first impression in this Circuit, as it requires that we
determine the necessity of such an approach under § 2255, as well as the more pressing question of whether a sentencing court has jurisdiction over § 2255 preliminary matters before a formal request for § 2255 relief is filed.

This latter issue arose in United States v. Leon , where the Court of Appeal s for the Second Circuit evaluated
whether there was jurisdiction to rule on a motion for an extension of time to file a § 2255 motion before an actual §
2255 motion wa s filed . 203 F.3 d 162, 163 (2d Cir. 2000). There, the court held that a district court could not rule on
such a motion because no case or controversy exists until a formal request for § 2255 relief is made

. See id. at 164 ( “because [appellant] has not yet filed an actua l § 2255 petition, there is no case or controversy to be heard, and any opinion

. . . render [ed] on the timeliness issue would be merely advisory

. ” ). In reaching this conclusion, the court implicitly viewed proceedings under § § 2254 and 2255 as
different sides of the same coin for purposes of subject matter jurisdiction

. See i d .; Green v. United States , 260 F .3d 78, 82

- 83 (2d Cir. 2001)

. That is , i t essentially viewed § 2255 proceedings as civil actions separate from prisoners’ underlying criminal cases , which is how motions under §
2254 have been viewed.

We disagree with the court’s holding in Leon because

,

3 Before recharacterizing a motion under AEDPA, a court
should inform a prisoner that she can have her motion (1) ruled upon as filed, or (2) recharacterized as requesting habeas relief and heard as such but lose her ability to file a successive request absent authorization from this Court under 28 U.S.C. § 2244(b)(3)

. See, e.g., Miller , 197 F .3d at 652; Adams v. United States , 155 F.3d 582, 583

- 84 (2d Cir. 1998).7 although certain aspects of a § 2255 proceeding may be considered civil, 4 a § 2255 proceeding is a continuation of a
defendant’s federal criminal case. See infra pp. 7

- 1 4

. As a
result

, under § 2255

, a motion for an extension of time can be
decided prior to a formal request for relief because the underlying prosecution satisfies Article III’s case or controversy requirement

.

A review of the legis lative hi story of § 2255 clarifies

t his jurisdictional nuance

. See United States v. Williams , 675 F.3d 275, 278 ( 3d Cir. 2012) (“Where the statutory language does not express Congress’ intent unequivocally, a court traditionally refers to the legislative history and the atmosphere in which the statute was enacted in attempt to determine the congressional purpose.”) (quoting United States v. Gregg , 226 F.3d 253, 275 (3d Cir. 2009))

.

B

.

The authority of federal courts to issue writ s of habeas corpus origi nates in the Constitution and was first given effect
in the Judiciary Act of 1789. See U.S. C ONST . art. I, § 9; Powell v. Rice

, 428 U.S. 465, 474

- 75 (1976). Initially, the
Act on ly applied to federal prisoners, and it empowered
district cou rts in the jur isdiction where federal prisoner s were confined to adjud icate requests for habeas relief

. See id. at 475; Hayman , 342 U.S. 205, 211 (1952) . In 1867, the Act was amended to extend the authority of district courts to state prisoners seeking habeas relief

, but it continued to require that petitions be submitted to the district court where a prisoner was confined. See id . In 1942, the Judicial Conference of the United States charged a committee of federal judges with the duty of thoroughly examining habeas procedure in order to develop prudent reforms. See Hayman

, 342 U.S. 205 at 214. Statistics showed that the volume of habeas cases nearly tripled between 1936 and 1945, and that the burden of this increase was primarily born by a small
number of district courts in jurisdictions where federal prisons were located. Id. at 212 n. 13, 214

. 5

4 See infra p. 14 n.11. Cou rts in such

5 “Of all habeas corpus applications filed by federal prisoners, 63% were filed in but five of the eighty

- four8 areas were “required to handle an inordinate number of habeas corpus actions far from the scene of the facts, the homes of the witnesses and the records of the sentencing court solely because of the fortuitous concentration of federal prisoners within the district.” Id . at 214

. 6

To rectify this problem, the Conference proposed “requiring prisoners convicted in federal courts to apply by
motion in the sent encing court instead of making application for habeas corpus in the district in which they are confined.”
Id. at 215 (internal citation omitted) . In a 1948 revision of the Judicial Code, Congress adopted the Conference’s recommended approach by amending the Code through two bills: (1) a “procedural bill” which provided that state prisoners shall file petitions for habeas corpus in state courts, or in the federal district of incarceration if exceptional circumstances exist; and (2) a “jurisdictional bill” “requiring prisoners convicted in federal courts to apply by motion in the sentencing court instead of making application for habeas corpus in the district in which they are confined.” Id

. ; see also H.R. 4342 and S. 1452, 79th Cong., 1st Sess. (procedural bill); H.R. 4233 and S.1451, 79th Cong. 1st Sess. (jurisdictional bill). In developing these reforms, the Senate Judiciary Committee of the 80th Congress issued a Report which stated that “[t]he legal and practical considerations for a different approach , in Federal court habeas proceedings, to
sentences in State courts and to sentences in Federal courts is evident and has long been recognized by the Congress and the
courts.” S . Rep. No. 1526

, at 1 (1948) (Comm. Rep.)

. The Report explained tha t the “mai n advantages of such [a] motion remedy over the present habeas corpus are as

District Courts.” Hayman , 342 U.S. at 214 n. 18; see also William H. Speck, S TATISTICS ON F EDERAL H ABEAS C ORPUS
, 10 Ohio St. L.J. 337 (1949).

6 Cf. Rule 7, Rules Governing § 2255 Proceedings in the United States District Courts, Advisory Committee Notes (“It is less likely that the court will feel the need to expand the record in a § 2255 proceeding than in a habeas corpus proceeding, because the trial (or sentencing) judge is the one hearing the motion (see Rule 4) and should already have a complete file on the case in his possession.”).9 follows:”

[H]abeas corpus is a separate civil action and not a further step in the criminal case in which petitioner is sentenced ( Ex parte Tom Tong , 108 U.S. 556, 559 (1883) ). It is not a determination of guilt or innocence of the charge upon which petitioner was
sentenced. Where a prisoner sustains a right to discharge in habeas corpus, it is usually because some right

— such as a
lack of counsel

— has been denied
which reflects n o determination of his guilt or innocence but affects solely the fairness of his earlier
criminal trial. Even under the broad power in the statute “to dispose of the party as law and justice require,” the court or judge is by no means in the same advantag eous position in habeas

corpus to do justice as would be

so if the matter were determined in the criminal proceeding

. For instance, the judge (by habeas corpus) cannot grant a new trial in
the criminal case. Since the motion remedy is in the criminal

pro ceeding, this section 2 affords the opportunity and expressly gives the broad powers to set aside the judgment and to discharge the prisoner or resentence him or grant a new
trial or correct the sentence as may appear appropriate.

S. Rep. No. 1526, at 2 ( emphasis added).

Thus, the motion to vacate a sentence, which was10 subsequently codified as § 2255, 7 was viewed as a continuation of the criminal case in the sentencing court in order to alleviate practical difficulties associated with fragmentation , and t o more evenly distribute caseloads amongst districts. By making § 2255 proceedings a continuation of the criminal case, Congress also gave federal
courts broader procedural latitude than in § 2254 8 habeas
actions . The lat ter were viewed as initiating fed eral civil suits that were separate from prisoner s’ prior state criminal case s

.

C

.

Congress’s intent regarding the procedural posture of §§ 2254 and 2255 is reflected in the titles Congress adopted in promulgating each section’s procedural rules; namely

, the “Rules Governing Section 2254 Cases in the United States District Courts,” and the “Rules Governing Section 2255 Proceedings in the United States Distr ict Courts.” (emphasis added). T he Advisory Committee on the Rules Governing § §
2254 and 2255 rep eatedly r einforces this distinc tion in its commentary for the Rules

. Specifically, under Rule 1 of § 2255, titled “Scope,” the Advisory Committee explains that a

7 “A pr isoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdic tion to impose such sentence, or that was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a).

8 “The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violati on of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). In addition, thoug h broader procedural latitude exists under § 2255, the Supreme Court has indicated that the scope of remedy under §§ 2254
and 2255 is the same. See Reed v. Farley , 512 U.S. 339, 353 (1994); Davis v. United States , 417 U.S. 333, 343

- 44 (1974).11 habeas “ motion under § 2255 is a further step in a movant’s criminal case and not a separate civil action” and, by contrast, § 2254 “habeas corpus is a separate civil action and not a further step in the criminal case in which a petitioner is
sentenced. ” Rule 1, Advis. Comm. N otes

. Under Rule 3, the Committee explains that “ as in other motions f iled in a criminal action, there is no requirement of a filing fee. It is appropriate that the present situation of docketing a § 2255 motion as a new action and charging a $15 fee be remedied . .

. ” Rule 3 , Advis. Comm. Notes . Similarly, Rule 4’s

comme ntary provides that “[s]ince the motion is part of the criminal action in which was entered the judgment to which it
is directed , the files, records, transcripts, and correspondence relating to that judgment are automatically available to the judge in his consideration of the motion. He no longer need order them incorporated for that purpose.” Rule 4 , Advis.
Comm. Notes . T he Committee also explains that Rule 6 pertaining to § 2255 “differs from the corresponding discovery rule under the § 2254 rules in t hat it includes the processes of discovery available under the Federal Rules of Criminal Procedure as well as the civil . This is because of the nature of a § 2255 motion as a continuing part of the criminal proceeding . . .” Rule 6 , Advis. Comm. Notes ; s ee also United States v. Goodman , 590 F.2d 705, 712

- 13 (8th Cir. 1979).

This interpretation of § 2255 is consistent with
instances in which Congress and the Advisory Committee use the word s “motion” and “petition” when referring to § § 2255
and 2254 , resp ectively, in a manner that highlight s each measures’ distinct procedural posture . Black’s Law Dictionary defines “motion” as “[a] written or oral application reque sting a court to make a specifi ed ruling or order.” Black’s Law Dictionary 1106 (9th ed. 20 09). By contrast, “petition” is defined as “ [ a ] formal written request presented to a court or other official body,” and “ [ i ] n some

cases, the first pleading in a lawsuit .” Id. at 1261

- 62 (emph asis added). This difference parallels the common understand ing t hat “motion” often refers to a request
submitted to a court during an action, while “petition” typically refers to the commencement of an action. Thus, the12 Senate Report discussed above, 9 referring to §§ 2254 and 2255 as Sections 1 and 2, respectivel y, provided that “a petition for habeas corpus may be filed before any circuit or district judge (within the circuit or district where the petitioner is confined)” and, by contrast, “[s]ection 2 . . . creates a statutory remedy consisting of a motion befor e the court where a movant was convicted.” S . Rep. No. 1526 , at 1

- 2 (emphasis added)

. Similarly , under Rule 2 of § 2255, the Advisory Committee emphasizes this distinction by explaining that “[u]nder these rules the application for relief
is in the form of a motion rather than a petition

. . . . [t]herefore, there is no requirement that the movant name a respondent.” Rules 2, Advis. Comm. Notes

. Even more convincingly , under Rule 3, the Advisory Committee unequivocally states that “[c]alling a § 2255 re quest for relief a motion rather than a petition militates toward charging no new filing fee, not an increased one. In absence of convincing evidence to the contrary, there is no reason to suppose th at Congress did not mean what it said in making a § 2255 action a motion .” Rule 3 , Advis. Comm. Notes (emphasis added)

. 10

D

.

Our analysis is consistent with that of the Court of Appeals for the Tenth Circuit in United States v. Cook, 997 F.2d 1312, 1319

- 20 (10th Cir. 1993)

. There, the Tenth Circuit held tha t courts should treat motions pertaining to §
2255 proceedings as part of a defendant’s underlying criminal

case. See id. Specifically, u nder 28 U.S.C. § 1915

, an

9 See supra pp

. 8

- 10.

10 While the words “motion” and “petition” are distinguished in this opinion to specifically highlight §§ 2254’s and 2255’s distinct proc edural postures, in some instances, courts use these words interchangeably because, at bottom, §§ 2254 and 2255 both provide a means of habeas relief under AEDPA. See, e.g., United States v. Cook , 997 F.2d 1312, 1318 (3d Cir. 1993) (“The Supreme Court’s d ecision in Andrews makes plain that the district court’s order on a § 2255 petition is not final until the court resentences the petitioner.”) (citing Andrews v. United States , 373 U.S. 334, 339 (1963)).13 indigent prisoner can proceed in forma pauperis without paying otherwise applicable filing fees. The Cook court explained that, prior to the “ enactment of the Rules Governing § 2255 Proceedings, . . . this circuit, following the lead of the Supreme Court, interpreted § 2255 to be a separate civil action which required either payment of a filing fee in the district court or leave to proceed in forma pauperis by the
district court.” Id. at 1319 (emphasis added) . However, it recognized that Rule 3 of § 2255 includes an Advisory Committee Note which provides that “there is no filing fee required o f a movant under these rules. This is a change from the practice of charging $15 and is done to recognize specifically the nature of a § 2255 motion as being a
continuation of the criminal case whose judgment is under
attack.” Rule 3, Advis. Comm. Notes ; Cook , 997 F.2d at
1319

. Therefore , the court held that “§ 2255 proceedings were not separate civil actions, but were instead a continuation of the same criminal matter in which the filing fees or leave to proceed in forma pauperis were not required.”
Co ok , 997 F.2d at 1319 (citations omitted) (emphasis added)

.

Before the Rules took effect in 1977, we also viewed § 2255 proceedings as civil actions separate from underlying
criminal cases . In United States v. Somers , for example, we stated, in a footnot e, that “[t]he order from which the government appealed was not entered in the criminal proceeding, but rather in a § 2255 proceeding. Such an action is not a proceeding in the original criminal prosecution, but is rather an independent civil suit.” 552 F.2d 108, 100 n. 6 (3d Cir. 1977) (citing Helfin v. United States , 358 U.S. 415, 418

n. 7 (1959) ) ; see also Neely v. United States , 546 F.2d 1059,
1065

- 66 (3d Cir. 1976 )

. Somers was argued December 2, 1976, and the Rules became effective on February 1, 1977

, less than a month before our decision was filed. T he holding
in Somers did not depend on that footnote, which was based on the Supreme Court’s jurisprudence before the R ules for §
2255 P roceedings were adopted. Prior to the ir enactment, the Supreme Cou rt stated that “a motion under § 2255, like a petition for a writ of habeas corpus is not a proceeding in the original criminal prosecution but an independent civil suit.” Helfin , 358 U.S. at 418 n. 7 (internal citation omitted)

. However, as noted in Cook , the Supreme Court’s “promulgation of the Rules Governing § 2255 Proceedings14 indicated the Court’s abandonment of its prior view that a § 2255 motion was a separate civil action.” Cook , 997 F.2d at 1319 (citing Williams v. United States , 984 F.2d 28, 30 (2d Cir. 1993)).

Accordingly, it is now clear that , while civil in some respects, a § 2255 proceeding is a continuation of the underlying criminal case. 11 It necessarily follows that because a § 2255 motion is a continuation of a defendant’s
criminal cas e, a motion for an extension of time to file a §
2255 motion is also a continuation of the underlying criminal case. Thus, a district court has subject m atter jurisdiction to
rule on a § 2255 motion for an extension of time before the substantive motion f or relief is actually filed

. T he underlying criminal case satisfies Article III’s case or controversy
mandate

.

III.

Having determined that the District Court had jurisdiction to rule on Thomas’ motion for an extension of time to file a § 2255 motion, w e now review the propriety of
the District Court’s denial. As noted above, § 2255(f)
establishes a one

- year limitations period for filing § 2255
motions. See supra p

. 3 . Here, the one

- year limitations period began to run when Thomas’ petition for certio rari was denied on June 15, 2009. See Gonzalez v. Thaler

, -- U.S.

-- ,

11 See Wall v. Kholi

, -- U.S.

-- , 131 S. Ct. 1278, 1 289 (2011) (“a motion under 28 U.S.C. § 2255 is entered on the docket of the original criminal case and is typically referred to the judge who originally presided over the challenged proceedings, see § 2255 Rules 3(b), 4(a), but there is no dispute that § 2255 proceedings are ‘collateral’”); United States v. Fiorelli , 337 F.3d 282, 286 (3d Cir. 2003) (“[W]hile a § 2255 motion is deemed a further step in the movant’s criminal case, it is also considered a civil remedy for purposes of appellate jurisdiction. ”). For example, Rule 11(b) pertaining to § 2255 provides that "Federal Rule of Appellate Procedure 4(a) [which concerns the time to appeal in civil cases] governs the time to appeal an ord er entered under these rules.” Thus, nothing we say here conflict s with our precedent of allowing 60 days to file a notice of appeal from a § 2255 proceeding.15 132 S. Ct. 641, 653 (2012). Thomas therefore h ad until June 15, 2010 to file his request for relief under § 2255. He filed
his motion for an extension of time approximately three
week s before his deadline. He requested additional time
because he was transferred from federal to state custody for
more than 120

- days without access to legal materials.

Since we have not previously recognized that a d istrict

c ourt has jurisdiction to rule on a motion for an extension of
time to file a § 2255 motion before a substantive request for
habeas relief is made , we have not had the opportunity to determine the appropriate standard of review for analyzing
denials of such motions

. However, we have h eld that the doctrine of equitable tolling permits untimely habeas filings in “extraordinary situations.” See Mi ller v. N.J. State Dep’t of
Corr

. , 145 F.3d 616, 618 (3d Cir. 1998) (holding that AEDPA’s one year limitation period may be equitably tolled).
There ar e no bright

- line rules for determining when extra time should be permitted in a particular case. See Sistrunk v. Rozum , 674 F.3d 181, 190 (3d Cir. 2012). Rather, the unique circumstances of each defendant seeking § 2255 relief must
be taken into account. See Pabon v. Mahanoy , 654 F.3d 385, 399 (3d Cir. 2011). Courts should grant a motion for an
extension of time to file a § 2255 motion sparingly, and should do so only when the “ principles of equity would make the rigid application of a limitati on period unfair.” Id. (quoting Miller , 145 F.3d at 618). The Supreme Court has instructed that equity permits extending the statutory time limit when a defendant shows that (1) “he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.”
Holland v. Florida

, -- U.S.

-- , 130 S. Ct. 2549, 2532

- 63 (2010) (quoting Pace v

. DiGug lielmo , 544 U.S. 408, 418 (2005)) . Mere excusable neglect is in sufficient. See Robinson v. Johnson , 313 F. 3d 128, 142 (3d Cir. 2002).

Here, Thomas failed to show that he diligently pursued his rights and that he was beleaguered by an extraordinary circumstance. Although temporarily transferred to state custody, Thomas was in federal custody with access to l egal materials for approximately nine months, including al most seven weeks leading up to the expiration of his limitations period

. Thomas provides no support for a finding that he was16 diligent, nor does he explain the necessity of the materials he
claims he was deprived of. See Robinson v. Johnson , 313 F.3d at 143 (“deprivation of legal material for a relatively brief time period is not sufficient to warrant tolling”). Although his transfer to state custody may have made it more
difficult to file a timel y § 2255 motion , increased difficulty does not, by itself

, satisfy the required showing of extraordinary circumstances. Cf. Munchinski v. Wilson , 694 F.3d 308, 329

- 30 (3d Cir. 2012); Pabon , 654 F.3d at 399

- 400 (holding that “equitable tolling might be war ranted when a

non

- English speaking petitioner could not comply with AEDPA’s statute of limitations because the prison did not provide access to AEDPA

- related materials, translation, or legal assistance in his or her language.”); Valverde v. Stinson

, 224 F. 3d 129 (2d Cir. 2000) (remanding case to district court for further factual development on extraordinary circumstances where defendant alleged that corrections officer intentionally confiscated his pro se habeas petition and related legal materials shortly before filing deadline). Accordingly, the District Court did not err in denying Thomas’ motion for an extension of time to file a § 2255
motion.

IV.

Lastly, we note that Thomas’ COA request “comes to us following a protracted and convoluted series of motions.” United States v. Rinaldi , 447 F.3d 192, 192 (3d Cir. 2006). As mentioned above, Thomas never filed a § 2255 motion for
relief after his motion for an extension of time was denied. Rather, he filed a notice of appeal challenging the District
Co urt’s order denying extra time, and a COA application that was referred to us by the District Court. As a result , there is

no order that formally grants or denies § 2255 relief

. Nevertheless, as we have explained, Thomas failed to demonstrate, both befor e the District Court 12

12 See supra p. 3. and on appeal, that extraordinary circumstances justify additional time based on equity. Thus, the District Court’s denial of Thomas’ motion for an extension of time, and Thomas’ decision not to subsequently submit a timely § 2255 mo tion, effectively
concluded his case be fore the District Court

.17 Thomas asks us to remand this matter so that he may file a proper motion for § 2255 relief, and so that the District
Court can again rule on whether the doctrine of equitable tolling should apply. See Brief for Appellant at 20 (“The Court should construe Mr. Thomas’ application for a Certificate of Appealability as a § 2255 petition and then
remand the case so the District Court can determine whether he is entitled to equitable tolling of § 2255’s one

- year limitations period.”). However, a perfunctory remand to
afford Thomas the formality of filing a time

- barred § 2255
motion would be futile because that motion would clearly be denied as untimely. Cf. Miller

- El v. Cockrell , 537 U.S. 322,
33 7 (2003) ( granting “a COA does not require that the appeal will succeed.”)

. As we have explained, there is no showing that equitable tolling should apply.

Accordingly, based on our review of the arguments
raised in this appeal

, and in both Thomas’ COA a pplication
and initial motion for extra time

, we will affirm the District
Court’s order denying his motion for an extension of time

.