NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 17-2647 ______________

UNITED STATES OF AMERICA

v.

EDWARD JACKSON, aka QUILL, Appellant ______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2-11-cr-00434-060) District Judge: Hon. Berle M. Schiller ______________

Argued Tuesday, January 14, 2020 ______________

Before: HARDIMAN, PORTER, and PHIPPS, Circuit Judges

(Filed: February 4, 2020)

Rachel A.H. Horton [Argued] Ilana H. Eisenstein DLA Piper 1650 Market Street One Liberty Place, Suite 5000 Philadelphia, PA 19103

Bruce P. Merenstein Schnader Harrison Segal & Lewis LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 Counsel for Appellant

William M. McSwain, United States Attorney Robert A. Zauzmer, Chief of Appeals Emily McKillip [Argued] Bernadette A. McKeon Michelle Rotella Nancy B. Winter Office of the United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106

Counsel for Appellee

______________

OPINION ∗ ______________

PORTER, Circuit Judge.

Edward Jackson pleaded guilty to one count of conspiracy to distribute

oxycodone. Jackson later petitioned the District Court to vacate, set aside, or correct his

sentence under

. A Magistrate Judge issued a Report and

Recommendation, recommending that the District Court deny Jackson’s motion. After

the deadline for Jackson to submit his objections to the Report and Recommendation, the

District Court entered a final order adopting the Report and Recommendation and

denying Jackson’s motion. More than sixty days later, Jackson appealed.

∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 As a threshold matter, we must decide whether Jackson’s notice of appeal was

timely. It was not. And because filing a timely notice of appeal is a jurisdictional

question, we will dismiss Jackson’s appeal for want of jurisdiction.

I

Jackson participated in a drug conspiracy. He pleaded guilty and was sentenced to

240 months’ imprisonment. He directly appealed, but we affirmed his conviction. United

States v. Jackson,

(3d Cir. 2014). In 2015, Jackson filed a motion

to vacate, set aside, or correct his sentence under § 2255. On April 17, 2017, the

Magistrate Judge issued a Report and Recommendation, recommending that the District

Court deny Jackson’s § 2255 motion. An accompanying notice alerted the parties that

they could file objections to the Report and Recommendation within fourteen days.

From prison on May 1, 2017, Jackson timely submitted his pro se objections to be

transmitted to the District Court, but they were not docketed until May 8, 2017. On May

3, 2017, the District Court entered an order (the “First Order”) adopting the Report and

Recommendation, denying the § 2255 motion, and declining to grant a certificate of

appealability. On July 14, 2017, Jackson mailed his request for a certificate of

appealability, which we construed as a notice of appeal. 1 On October 20, 2017, the

District Court responded to Jackson’s objections to the Report and Recommendation by

1 Jackson contends that he filed an earlier notice of appeal, but he concedes that there is no evidence that we ever received or docketed it. See Appellant’s Br. at 13. And while he claims that a search of the prison mail log would support his contention, see id., he does not explain why an evidentiary hearing is necessary for him to conduct this search. 3 entering a second order (the “Second Order”) that again adopted the Report and

Recommendation and denied Jackson’s § 2255 motion.

II 2

We must first decide whether we have jurisdiction to consider Jackson’s appeal.

Because a § 2255 motion is considered a civil remedy, see United States v. Fiorelli,

(3d Cir. 2003), whether Jackson’s appeal was timely filed is a

jurisdictional question, see Bowles v. Russell,

, 209–11 (2007). A notice of

appeal in a civil action in which the United States is a party is timely when it is filed

within 60 days of the entry of an appealable order or a final judgment. Fed. R. App. P.

4(a)(1)(B).

In the First Order, the District Court adopted the Report and Recommendation and

denied Jackson’s § 2255 motion. The First Order was final because it “end[ed] the

litigation on the merits and [left] nothing for the court to do but execute the judgment.”

Quackenbush v. Allstate Ins. Co.,

(1996) (quoting Catlin v. United

States,

(1945)); cf. Browder v. Dir., Dep’t of Corr.,

(1978) (“Respondent’s failure to assert the need for an evidentiary hearing . . . did not . . .

render the [d]istrict [c]ourt order nonfinal.” (emphasis added)). And Jackson conceded as

much. See Appellant’s Br. at 24 (“Here, the District Court’s first order denied habeas

relief on May 3, 2017, and, therefore, that order had the finality required under FirsTier

2 The District Court had jurisdiction under

, 2255. “We have jurisdiction to review our own jurisdiction when it is in doubt[.]” LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n,

(3d Cir. 2007) (citing Constitution Bank v. Tubbs,

(3d Cir. 1995)). 4 Mortgage.” (emphasis added)). The record shows that Jackson delivered his request for a

certificate of appealability—which we construed as his notice of appeal—to prison

authorities for mailing more than sixty days later, on July 14, 2017. Because Jackson

missed the sixty-day deadline to appeal, we lack jurisdiction over his appeal.

Jacksons raises two alternative theories under which we might exercise

jurisdiction. First, he contends that his objections to the Report and Recommendation

should be construed as a motion to amend the District Court’s judgment under Federal

Rule of Civil Procedure 59(e). Second, he asserts that Jackson’s notice of appeal

“ripened” when the District Court entered the Second Order. We are unpersuaded and

still conclude that we lack jurisdiction.

A

Jackson first tries to save his untimely appeal by inviting us to construe his

objections to the Report and Recommendation as a motion to amend the judgment under

Rule 59(e). If we interpret Jackson’s objections as a Rule 59(e) motion, then the deadline

to file his appeal would have been tolled until the District Court resolved the motion. See

Fed. R. App. P. 4(a)(4)(A)(iv), (B)(i). According to Jackson, construing his objections as

a Rule 59(e) motion would render his notice of appeal timely because the deadline for his

notice would have been tolled until the District Court entered the Second Order in

October 2017.

We decline Jackson’s invitation to construe his objections to the Report and

Recommendation as a Rule 59(e) motion. At the outset, we observe that objections to a

report and recommendation and a Rule 59(e) motion are fundamentally different.

5 Objections respond to a magistrate judge’s recommendation to a district court on how to

resolve a dispositive motion. See Fed. R. Civ. P. 72(b)(2) (governing objections filed to

recommendations made by magistrate judges on dispositive motions); cf. Equal Emp’t

Opportunity Comm’n v. City of Long Branch,

, 99–100 (3d Cir. 2017).

Relevant here, a magistrate judge reviewing “applications for posttrial relief made by

individuals convicted of criminal offenses” is authorized by statute to provide only

recommendations to a district court.

(b)(1)(B) (“a [district] judge may

also designate a magistrate judge . . . to submit . . . proposed findings of fact and

recommendations for the disposition, by a judge of the court[ ]”). The plain meaning of

§ 636(b)(1)(B) permits a magistrate judge to make a recommendation on an application

for post-conviction relief—not rule on an application outright.

By contrast, Rule 59(e) motions respond to judgments entered by district courts.

Cf. In re Vehicle Carrier Servs. Antitrust Litig.,

(3d Cir. 2017) as

amended (Jan. 25, 2017). This is confirmed by the plain text of Rule 59(e), which

explicitly contemplates “alter[ing] or amend[ing] a judgment.” Fed. R. Civ. P. 59(e)

(emphasis added). We have also said that “[a] motion under Rule 59(e) is a device to

relitigate the original issue decided by the district court, and used to allege legal error.”

Fiorelli,

(emphasis added) (internal quotation marks and citation

omitted).

In short, objections and Rule 59(e) motions differ because they respond to

different statements by courts: objections respond to magistrate judges’ recommendations

6 to district courts, while Rule 59(e) motions respond to final decisions by district courts.

Compare City of Long Branch, 866 F.3d at 99–100, with Fiorelli,

.

Here, Jackson filed objections to the Report and Recommendation. He titled his

filing as “Petitioner’s Objections to the Report and Recommendation,” JA234, and, in

that filing, he “respectfully object[ed] to the [Report and Recommendation] filed by [the]

Magistrate Judge . . . and urge[d] the District Court to independently review the grounds

raised by [him].” JA239 (emphasis added). In form and substance, Jackson’s filing raised

objections to the Report and Recommendation but did not purport to challenge any

judgment of the District Court. Because we construe a pro se motion based on its

“function . . . and not the caption,” see Fiorelli,

, we must read Jackson’s

objections as just that: objections to the Report and Recommendation.

And perhaps more importantly, we will not read Jackson’s objections as a Rule

59(e) motion because doing so would imply that the Magistrate Judge could have

resolved an application for post-conviction relief. If Jackson’s objections were considered

a Rule 59(e) motion, then we would be treating the Magistrate Judge’s Report and

Recommendation as a final judgment. But by statute, magistrate judges are not authorized

to enter final judgments on applications for post-conviction relief; they are permitted only

to recommend outcomes to district courts. See § 636(b)(1)(B). We decline to defy the

plain meaning of a validly enacted statute by construing Jackson’s objections as a Rule

59(e) motion.

Lastly, as a matter of temporal logic, a Rule 59(e) motion may not be submitted

before a district court has announced its decision. In other words, Jackson could not have

7 filed a Rule 59(e) motion until after the District Court announced the First Order. But

here, Jackson submitted his objections to the Report and Recommendation before the

District Court announced or entered the First Order. We will not construe his objections

to the Report and Recommendation as a motion to amend a then-yet-to-be-announced

order. Cf. United States v. Hashagen,

(3d Cir. 1987) (“[I]t hardly

would do to permit a party to file a general notice of appeal at the start of the action as a

precaution . . . .”).

In sum, we will not indulge Jackson’s request to construe his objections to the

Report and Recommendation as a Rule 59(e) motion to amend a then-unannounced

order. 3

B

Next, Jackson argues that his request for a certificate of appealability—which we

construed as a notice of appeal—“ripened” after the District Court entered the Second

Order. Under this theory, Jackson’s notice of appeal was premature because the Second

Order was issued after he filed it. To support his argument, Jackson relies on two cases—

FirsTier Mortgage Co. v. Investors Mortgage Insurance Co.,

(1991), and

Lazy Oil Co. v. Witco Corp.,

(3d Cir. 1999).

3 Jackson insists that Fiorelli requires us to construe his objections as a Rule 59(e) motion. Jackson is wrong. There, we construed a Rule 60(b) motion as a Rule 59(e) motion. See Fiorelli, 337 F.3d at 287–88. In doing so, we observed that “motions for reconsideration under Federal Rules of Civil Procedure 59(e) and 60(b) serve similar functions[.]” Id. at 288. Here, as we explained above, Rule 59(e) motions and objections to magistrate judges’ recommendations do not serve similar functions. Thus, Fiorelli does not control. 8 We are unpersuaded that either FirsTier or Lazy Oil supports Jackson’s argument.

In FirsTier, the appellant filed a notice of appeal after the district court issued a bench

ruling but before it entered judgment.

. Because the bench ruling

constitued a “final decision” for purposes of the Federal Rules of Appellate Procedure,

the appellant acted reasonably by filing its notice of appeal after the bench ruling but

before the judgment was entered.

. Here, the First Order was a final appealable

order. See Quackenbush,

. Jackson filed his appeal from that final order

beyond the deadlines in Rule 4(a)(1)(B). In short, Jackson’s appeal was not premature—it

was late. FirsTier is therefore distinguishable from Jackson’s appeal.

Lazy Oil also provides little support to Jackson’s argument. Lazy Oil is one of

several cases that stand for the proposition that under certain circumstances, “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 [district] court’s disposal of the

remaining claims.” 166 F.3d at 585 (emphasis added) (citing Cape May Greene, Inc. v.

Warren,

, 184–85 (3d Cir. 1983)). But here, the District Court’s First Order

resolved all of Jackson’s claims. In the First Order, the District Court adopted the Report

and Recommendation, denied Jackson’s § 2255 motion in its entirety, and declined to

issue a certificate of appealability. And Jackson conceded that the First Order is a final

one. See Appellant’s Br. at 24. Thus, Lazy Oil is also distinguishable from Jackson’s

case.

Accordingly, we reject Jackson’s argument that his untimely notice of appeal

“ripened” upon the District Court’s entry of the Second Order.

9 * * *

Jackson did not file a timely notice of appeal, so we will dismiss for lack of

jurisdiction.

10