PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-9000

___________

JEROME MARSHALL,

 Appellant

v.

COMMISSIONER PENNSYLVANIA DEPARTMENT 

OF CORRECTIONS; SUPERINTENDENT GREENE 

SCI; DISTRICT ATTORNEY PHILADELPHIA;

ATTORNEY GENERAL PENNSYLVANIA;

SECRETARY DEPARTMENT OF CORRECTIONS;

WILLIAM S. STICKMAN

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-03-cv-03308)

District Judge: Honorable James Knoll Gardner

____________________________________

Submitted By the Clerk for Possible 

Dismissal Due to a Jurisdictional Defect

July 13, 2016
2

Before: SMITH, Chief Judge, HARDIMAN, and 

RESTREPO, Circuit Judges

(Opinion filed: October 25, 2016)

Maureen C. Coggins, Esq.

523 West Linden Street

Allentown, PA 18101

Christian J. Hoey, Esq.

Rubino & Hoey

50 Darby Road

Paoli, PA 19301

Counsel for Appellant

Susan E. Affronti, Esq.

Philadelphia County Office of District Attorney

3 South Penn Square

Philadelphia, PA 19107

Counsel for Appellees

___________

OPINION OF THE COURT

___________
3

PER CURIAM

Jerome Marshall is currently pursuing a petition for a 

writ of habeas corpus in the District Court. Marshall is 

represented by counsel, but he filed a motion to remove 

counsel and to proceed pro se. He later filed a notice of 

appeal challenging the District Court’s purported denial of 

that motion. The District Court, however, had not yet entered 

or announced any decision on that motion. To the contrary,

the District Court had expressly advised Marshall that it had 

not made a decision and would do so only later. Thus, when 

Marshall filed his notice of appeal, the District Court had not 

yet entered or announced any decision that could be brought 

before us for appellate review. The District Court later 

denied Marshall’s motion. 

The question presented by these circumstances is 

whether Marshall’s notice of appeal has ripened now that the 

District Court has issued its decision. We conclude that it has 

not. Consequently, we will dismiss this appeal for lack of 

jurisdiction.

I. Background

Marshall was sentenced to death in Pennsylvania in 

1984, and he has been pursuing a federal habeas petition since 

2003. Marshall initially filed his petition through the Federal 

Community Defender. Many years later, however, Marshall 

became dissatisfied with the Community Defender’s services 
4

and filed a motion for appointment of new counsel. The 

District Court granted that motion and appointed Christian 

Hoey and Maureen Coggins to represent Marshall.

Marshall soon became dissatisfied with their services 

as well, apparently because they would not withdraw the 

habeas petition filed by the Community Defender and assert 

different claims. Marshall eventually filed pro se a document 

titled “Petitioner’s Pro Se Omnibus Motion.” (ECF No. 102.) 

In that document, Marshall requested an order: (1) removing 

his new counsel; (2) striking the habeas petition and all other 

documents filed by the Community Defender; (3) allowing 

the filing of a new habeas petition “nunc pro tunc”; and (4) 

remanding for a new hearing “nunc pro tunc” in state court. 

It appears that Marshall sought to proceed pro se in order to 

dismiss all of his counseled claims and assert different claims 

that may be both procedurally defaulted and untimely (though 

we express no opinion on that issue).

By order entered April 1, 2015, the District Court 

scheduled a hearing on Marshall’s request to remove counsel 

but dismissed Marshall’s last three requests without prejudice 

because he remained represented by counsel at the time. 

(ECF No. 101.) Shortly thereafter, counsel filed a motion 

seeking a determination of Marshall’s mental competence. 

Marshall responded with a supplemental motion to remove 

counsel. (ECF No. 113.) In light of these developments, two 

issues remained to be determined by the District Court—

whether Marshall was mentally competent, and whether to 

remove Hoey and Coggins as counsel and permit Marshall to 

proceed pro se.
5

The District Court held three hearings on these issues 

before Marshall ultimately consented to a psychiatric 

evaluation. Dr. Francis Dattilio conducted the evaluation and 

issued a report opining that Marshall is not competent either 

to assist his counsel or to proceed pro se. The District Court 

then held a fourth hearing on February 17, 2016. At the 

hearing, Dr. Dattilio testified consistently with his report that 

Marshall is not competent. The District Court then took the 

issues of Marshall’s competence and the removal of counsel 

under advisement. In doing so, the District Court made it 

very clear at the conclusion of the hearing that it had not yet 

decided those issues:

There are two things that need to be decided . . . 

first, whether or not Mr. Marshall is competent 

and, if not, in what ways is he not competent. 

And then, second, whether or not I’m going to 

grant his request to discharge his current 

counsel. I will be deciding these matters sooner 

rather than later. I’m not going to make any 

rash promises about how soon is soon, but I’m 

talking weeks, not months or years. And when 

I do decide them, there will be a briefing 

schedule. . . .

(ECF No. 136; N.T. 2/17/16, at 73-74.) Marshall was present 

at the hearing. 

Eight days later, however, and before the District 

Court had announced any decision, Marshall filed pro se the 

notice of appeal at issue here. (ECF No. 137.) The notice 

states in relevant part that Marshall “appeals . . . from the 
6

Order [of] . . . Judge James Knoll Gardner, on the date of 

February 18th, 2016, denying petitioner’s motions to remove 

counsel and denying petitioner’s Sixth Amendment right to 

proceed pro-se. Petitioner seeks reversal of that order.” (Id.

at 1) (capitalization and punctuation standardized). In fact, 

there was no such order, and Marshall’s reference to a 

February 18 order appears to be a reference to the February 

17 hearing. 

The District Court ultimately made its decision on 

these issues and, by order entered March 24, 2016, it found 

Marshall mentally incompetent to proceed pro se and denied 

his request for removal of counsel. (ECF No. 141.) 

Marshall’s 30-day deadline to appeal that ruling expired on 

April 25, 2016 (April 23 being a Saturday). See Fed. R. App. 

P. 4(a)(1)(A). Neither Marshall nor his counsel filed anything 

with the District Court or this Court by that time, and 

Marshall himself has filed nothing since. After Marshall filed 

his notice of appeal, the Clerk notified the parties that this 

appeal would be considered for possible dismissal due to a 

jurisdictional defect and gave them an opportunity to respond. 

No party has filed a response. 

II. Analysis

“An appellate court lacks jurisdiction over an appeal 

that is untimely filed, including premature appeals.” Lazorko 

v. Pa. Hosp., 237 F.3d 242, 248 (3d Cir. 2000). Marshall’s 

notice of appeal was premature because, when he filed it, the 

District Court had not yet issued or announced its decision on 

his motion for removal of counsel. Thus, unless there is some 

basis to deem Marshall’s notice of appeal to have ripened 
7

now that the District Court has ruled, we must dismiss this 

appeal as “premature and void.” Lazy Oil Co. v. Witco 

Corp., 166 F.3d 581, 585 (3d Cir. 1999). 

We conclude that there is no such basis and therefore

will dismiss this appeal. There are two ways in which 

premature appeals can ripen in this Circuit—under Rule 

4(a)(2) of the Federal Rules of Appellate Procedure, and 

under the doctrine based on Cape May Greene, Inc. v. 

Warren, 698 F.2d 179 (3d Cir. 1983). See ADAPT of Phila. 

v. Phila. Hous. Auth., 433 F.3d 353, 364 (3d Cir. 2006). 

Neither applies in this situation. Even if their requirements 

were otherwise satisfied, neither permits the ripening of an 

appeal filed before the District Court announces the decision 

sought to be challenged.

A. Rule 4(a)(2)

Rule 4(a)(2) is the rule governing premature notices of 

appeal. The rule provides that “[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.” Fed. R. App. P. 4(a)(2) (emphasis 

added). By its terms, this rule applies only when the District 

Court actually has announced some decision or order. See

United States v. Cooper, 135 F.3d 960, 962 (5th Cir. 1998) 

(holding that Rule 4(a)(2) requires an actual District Court 

“decision” and does not permit the ripening of an appeal from 

a Magistrate Judge’s recommendation);1 Williams v. Roberts, 

 

1 While Cooper is consistent with our Rule 4(a)(2) 

jurisprudence in its recognition that only an actual District 
8

116 F.3d 1126, 1127 n.3 (5th Cir. 1997) (per curiam) (holding 

that a pro se prisoner’s appeal filed before the District Court 

announced its decision did not ripen under Rule 4(a)(2)).

Rule 4(a)(2) does not apply here because Marshall 

filed his notice of appeal before the District Court announced 

its decision. The District Court announced its decision only 

later, and “not even Rule 4(a)(2) can cause a notice of appeal 

that is filed before a ruling has even been announced to 

encompass the later-announced ruling.” 16A Charles Alan 

Wright et al., Federal Practice and Procedure § 3950.5 (4th 

ed. 2008); see also DeJohn v. Temple Univ., 537 F.3d 301, 

306, 307 n.3 (3d Cir. 2008) (holding that Rule 4(a)(2) did not 

permit challenge to the final judgment on an appeal from a 

prior interlocutory order). 

Applying the rule in this situation also would not 

comport with its purpose. Rule 4(a)(2) is “intended to protect 

the unskilled litigant who files a notice of appeal from a 

decision that he reasonably but mistakenly believes to be a 

final judgment[.]” FirsTier Mortg., 498 U.S. at 276. The 

Rule does not apply when “[a] belief that . . . a decision is a 

final judgment would not be reasonable.” Id. In this case, it 

was not reasonable for Marshall to conclude that the District 

Court announced a final decision because the District Court 

 

Court decision triggers the rule, Cooper is in some tension 

with our Cape May Greene jurisprudence. See Lazy Oil, 166 

F.3d at 586-87. That tension exists because, unlike this court, 

the Fifth Circuit has concluded that FirsTier Mortgage

abrogated its own version of the Cape May Greene doctrine. 

See id. 
9

did not announce any decision at all. To the contrary, the 

District Court expressly stated that it had not made a decision 

and would do so in the future. Even making allowances for 

Marshall’s pro se status, this situation does not present the 

kind of trap for the unwary that Rule 4(a)(2) was designed to 

prevent.

B. The Cape May Greene Doctrine

The Cape May Greene doctrine also does not apply in 

this situation. Under that doctrine,

where there is no showing of prejudice by the 

adverse party and we have not taken action on 

the merits of an appeal, a premature notice of 

appeal, filed after disposition of some of the 

claims before a district court, but before entry 

of final judgment, will ripen upon the court’s 

disposal of the remaining claims.

Khan v. Att’y Gen., 691 F.3d 488, 493 (3d Cir. 2012) 

(quoting DL Res., Inc. v. FirstEnergy Sols. Corp., 506 F.3d 

209, 215 (3d Cir. 2007)). The doctrine ensures that 

“practical, not technical considerations” govern the 

determination of finality, id. (quoting Cape May Greene, 698 

F.2d at 185), and it avoids “elevat[ing] a mere technicality 

above the important substantive issues” raised by an appeal, 

id. (quoting Lazy Oil, 166 F.3d at 587).

In Cape May Greene, the plaintiff appealed from an 

order entering summary judgment in favor of the last 

remaining defendant. See Cape May Greene, 698 F.2d at 
10

184. The order was not final when the plaintiff filed its notice 

of appeal because one defendant’s cross-claim against another 

defendant remained pending. See id. We nevertheless 

exercised jurisdiction over the District Court’s entry of 

summary judgment because the District Court later dismissed 

the cross-claim, and thus rendered final the order appealed 

from, before we took action on the appeal. See id. at 184-85.

The Cape May Greene doctrine is broader than Rule 

4(a)(2) in one respect. See ADAPT of Phila., 433 F.3d at 

363-64. Rule 4(a)(2) permits the ripening of a notice of 

appeal from a decision that is immediately appealable if the 

District Court has announced the decision but has not yet 

formally entered it. The Cape May Greene doctrine, by 

contrast, permits the ripening of a notice of appeal from a 

decision that is not immediately appealable but that becomes 

appealable before we take action on the appeal. 

What both Rule 4(a)(2) and the Cape May Greene

doctrine have in common, however, is that they permit the 

ripening only of appeals that are taken from actual District 

Court decisions. We appear never to have made that point 

explicitly, so we take the opportunity to do so now. In the 

absence of circumstances not presented here, the Cape May 

Greene doctrine does not permit the ripening of a notice of 

appeal filed before the District Court announces the decision 

sought to be challenged. Instead, we have applied the 

doctrine in civil actions only to permit the ripening of appeals 

from actual decisions, and we have done so only to entertain 

challenges to those decisions themselves and not to 

subsequent rulings made after the filing of the notice of 

appeal. See, e.g., DL Res., 506 F.3d at 214-16 (addressing 
11

order entering summary judgment on liability but not 

damages); Lazy Oil, 166 F.3d at 585-87 (addressing order 

approving class settlement but not an allocation plan); Batoff 

v. State Farm Ins. Co., 977 F.2d 848, 851 & n.5 (3d Cir. 

1992) (addressing order dismissing complaint with leave to 

amend); Presinzano v. Hoffman-La Roche, Inc., 726 F.2d 

105, 108 (3d Cir. 1984) (addressing order entering partial 

summary judgment); cf. ADAPT of Phila., 433 F.3d at 361-

65 (declining to apply Cape May Greene to interlocutory 

discovery orders).2

 

2 To the extent that our decision in the administrative context 

in Khan represents an exception to this principle, it is 

distinguishable. In that case, the petitioners filed their

petition for review after a clerk with the Board of 

Immigration Appeals informed them on the day they were 

scheduled for removal that the Board would not consider their 

motion to reopen and emergency motion for a stay. See

Khan, 691 F.3d at 492. The Board later denied their motion 

to reopen, and we permitted petitioners to challenge that 

ruling. Id. at 492-93. We did so by applying the Cape May 

Greene doctrine “to the circumstances presented in th[at] 

case.” Id. at 494. Those specific circumstances are 

instructive. The petitioners in Khan initially sought review of 

a statement by the Board’s clerk that they understandably 

interpreted as “an effective denial of their motion.” Id. at 

495. Then, after the Board denied their motion on the merits, 

petitioners filed with this Court a response in opposition to 

dismissal that we construed “as updating the petition for 

review into a challenge to” that later ruling. Id. at 494. Thus, 
12

The distinguishable situation presented in Khan aside, 

we have located no authority permitting the ripening of a 

notice of appeal filed before the District Court has announced 

any decision at all. That is for good reason. Extending the 

Cape May Greene doctrine to this situation would permit a 

litigant to file a preemptive notice of appeal before the 

District Court makes or announces any decision and then 

proceed with the appeal if the decision later proves 

unfavorable. Other courts have declined to sanction that 

approach. As the Fifth Circuit has explained, “[s]ystemic 

interests in the conservation of judicial resources dictate that a 

party must not appeal an order simply because he believes it 

will be adverse. Only where the appealing party is fully 

certain of the court’s disposition . . . will appeal be proper.” 

Cooper, 135 F.3d at 963.

 

Khan involved both (1) a petition for review from the 

functional equivalent of an actual decision and (2) the 

functional equivalent of an amended petition for review filed 

after the decision that petitioners ultimately challenged. 

There was no functional equivalent of a decision in this case 

because the District Court expressly advised Marshall that it 

had not made a decision and would do so in the future. There 

also is no functional equivalent of an amended notice of 

appeal because Marshall did not file anything more after the 

District Court issued its decision. We further note that Khan

was decided on administrative review and that appellate 

Rules 3 and 4, discussed later herein, did not apply to that 

proceeding. See Fed. R. App. P. 20.
13

We likewise decline to sanction that approach in this 

case, for three reasons. First, the statute and rule governing 

the filing of the notice of appeal in this case require that it be 

filed “after” the judgment or order sought to be appealed. 28 

U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A). Indeed, Rule 4 

was amended in 1979 to make that point explicit. See Fed. R. 

App. P. 4(a)(1) advisory committee’s notes to 1979 

amendment. Applying the Cape May Greene doctrine in this 

situation would conflict with these provisions. 

We have made that point in the criminal context, in 

which appellants similarly must file their notices of appeal 

“after” the judgment or order being appealed. Fed. R. App. P. 

4(b)(1). We adopted the Cape May Greene doctrine in that 

context to permit premature appeals, filed after a conviction 

but before the final judgment of sentence, to ripen upon entry 

of the final judgment of sentence. See United States v. 

Hashagen, 816 F.2d 899, 905-06 (3d Cir. 1987) (en banc). In 

doing so, however, we recognized that the language of Rule 

4(b) must render certain premature appeals “inoperative.” Id.

at 903. As we explained:

There must be some limits to the circumstances 

in which a premature notice can be given effect; 

it hardly would do to permit a party to file a 

general notice of appeal at the start of the action 

as a precaution to ensure timely filing. . . . 

Indeed, the language of Rule 4(b) does not 

support the extreme prematurity of a general 

notice of appeal, for the rule requires the appeal 

to be filed after either a decision, a sentence, or 

an order.
14

Id. at 903-04 (emphasis added) (quotation marks and internal 

citation omitted). The same principle applies in this civil 

context. Marshall did not file a “general notice of appeal at 

the start of the action,” but he filed his notice of appeal before 

the District Court announced its decision and after the District 

Court advised him that it had not made a decision at all. 

Second, notices of appeal must “designate the 

judgment, order, or part thereof being appealed.” Fed. R. 

App. P. 3(c)(1)(B). Applying the Cape May Greene doctrine 

here would conflict with this rule as well. Even when the 

Cape May Greene doctrine permits the ripening of a 

premature appeal from a decision that is not yet appealable, it 

does so only to permit review of that decision once it 

becomes appealable. It does not permit review of subsequent 

rulings that were not (and could not have been) designated in 

the notice of appeal. See Bonner v. Perry, 564 F.3d 424, 429-

30 (6th Cir. 2009) (applying version of the Cape May Greene

doctrine); B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 

F.3d 1282, 1296 (10th Cir. 2008) (same); see also Gov’t of 

the V.I. v. Leonard A., 922 F.2d 1141, 1146 n.6 (3d Cir. 

1991) (rejecting appellant’s “attempt[] to appeal from a 

determination and order made . . . after he filed the appeal” 

because “[t]hat issue could not possibly have been raised by 

the notice of appeal”). A District Court’s subsequent ruling 

in this situation is not subject to review unless the appellant 

files another notice of appeal designating that ruling, and 

Marshall has filed nothing that could be construed as another 

notice of appeal in this case.
15

Finally, even if we were at liberty to apply the Cape 

May Greene doctrine in this situation,3 we would decline to 

do so because applying it here would not be consistent with 

its purpose. As noted above, we apply the Cape May Greene

doctrine to avoid “elevat[ing] a mere technicality above the 

important substantive issues” raised by an appeal. Lazy Oil, 

166 F.3d at 587. In ADAPT of Philadelphia, we declined to 

apply the doctrine to permit the ripening of appeals from 

interlocutory discovery orders. See 433 F.3d at 364-65. We 

did so because applying the doctrine in that situation “would 

do more than overcome a mere technicality—it would invite 

the very piecemeal litigation discouraged by 28 U.S.C. § 

1291.” Id. at 364.

 

3 We have based our application of the Cape May Greene

doctrine in part on Rule 2 of the Federal Rules of Appellate 

Procedure. See Lazy Oil, 166 F.3d at 587. That rule permits 

us to suspend the requirements of certain other rules “to 

ensure that justice is not denied on the basis of a mere 

technicality.” Id. As we have recognized, however, “Rule 2 

cannot be utilized to expand the jurisdiction of the Court.” Id.

at 587 n.9. Giving effect to a notice of appeal filed before the 

District Court even announces the decision sought to be 

challenged arguably would do just that. See Benn v. First 

Jud. Dist. of Pa., 426 F.3d 233, 237 (3d Cir. 2005) (“A court 

may not waive the jurisdictional requirements of Rules 3 and 

4, even for ‘good cause shown’ under Rule 2.”). We need not 

decide that issue, however, because we would decline to 

assert jurisdiction under the Cape May Greene doctrine even 

if we had the authority to do so.
16

There is even less of a basis to apply the Cape May 

Greene doctrine when an appellant appeals before the District 

Court has announced a decision at all. Doing so would erode 

our “[s]ystemic interests in the conservation of judicial 

resources” by encouraging litigants to file preemptive appeals 

to challenge future rulings that may or may not prove 

unfavorable to them. Cooper, 135 F.3d at 963. The District 

Court ultimately denied Marshall’s motion in this case, but 

there was no basis for Marshall to file his notice of appeal

when he did. The District Court had not announced any 

decision at that time and instead had expressly advised 

Marshall that it would make its decision in the future. Thus, 

Marshall filed his appeal before there was anything that he 

could bring before us for appellate review, prematurely or 

otherwise. Marshall also knew or should have known as 

much. Under these circumstances, the prematurity of 

Marshall’s notice of appeal cannot be characterized as a mere 

technicality.4 

We have described the Cape May Greene doctrine as 

taking an “expansive view of appellate jurisdiction,” and it is 

one that not all Courts of Appeals share. ADAPT of Phila., 

 

4 Although Marshall’s notice of appeal brings nothing before 

us in our appellate capacity, we could construe it as a petition 

for a writ of mandamus seeking a ruling on his motion. See

Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998). 

There is no reason to do so because Marshall did not 

complain of any delay in ruling on his motion and, even if he 

did, that issue would have become moot once the District 

Court ruled.
17

433 F.3d at 362. However expansive the doctrine may be, it 

does not permit the ripening of an appeal filed before the 

District Court makes or announces the decision sought to be 

challenged. Cf. Hashagen, 816 F.2d 899 at 903-06. Because 

the District Court had not yet announced its decision when 

Marshall filed his notice of appeal in this case, the Cape May 

Greene doctrine does not permit Marshall’s notice to ripen 

into an appeal from the District Court’s subsequent decision. 

And because Marshall did not file another notice of appeal 

after the District Court announced that decision, we lack 

jurisdiction to review it.

III. Conclusion

For these reasons, we will dismiss this appeal. We 

express no opinion on whether the District Court’s order 

denying Marshall’s motion to remove counsel remains subject 

to challenge on appeal from the District Court’s final 

judgment.