Case: 23-30151         Document: 00517060180             Page: 1      Date Filed: 02/08/2024




              United States Court of Appeals
                   for the Fifth Circuit                                        United States Court of Appeals
                                                                                         Fifth Circuit
                                      ____________                                     FILED
                                                                                February 8, 2024
                                        No. 23-30151
                                      ____________                                Lyle W. Cayce
                                                                                       Clerk
   Kendrick Christmas,

                                                                    Petitioner—Appellant,

                                             versus

   Tim Hooper, Warden, Louisiana State Penitentiary,

                                                Respondent—Appellee.
                      ______________________________

                      Appeal from the United States District Court
                          for the Middle District of Louisiana
                                USDC No. 3:18-CV-691
                      ______________________________

   Before Elrod, Willett, and Duncan, Circuit Judges.
   Per Curiam:*
          In 2011, Kendrick Christmas, Louisiana prisoner #585115, received a
   life sentence for second-degree murder and two 50-year sentences for
   attempted murder. All three sentences were set to run concurrently.
   Proceeding pro se, Christmas in 2018 filed a petition for federal habeas relief
   under 

, alleging various constitutional violations at his trial
   and on appeal. On March 31, 2022, the district court denied his petition as

          _____________________
          *
              This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-30151        Document: 00517060180              Page: 2      Date Filed: 02/08/2024




                                         No. 23-30151


   untimely and granted a certificate of appealability (COA) on the timeliness
   issue.
            Christmas had until May 2, 2022, to appeal. See Fed. R. App. P.
   4(a)(1)(A), 26(a)(1)(C). On May 5, 2022, we received a letter dated May 2
   from Christmas, requesting a “return date” and an extension to file a “COA
   brief.” The letter was postmarked on May 3, 2022. A deputy clerk of our
   court responded that there was no open appeal and that the district court’s
   order did not transfer his case to this court.
            On June 10, 2022, Christmas moved the district court to reopen his
   time for appeal under Federal Rule of Civil Procedure 60(b). The district
   court denied Christmas’s Rule 60(b) motion, and Christmas timely appealed.
   See Fed. R. App. P. 4(c)(1)(A)(ii).
            Christmas does not argue on appeal that the district court erred in
   denying his Rule 60(b) motion. He has thus forfeited that argument. See Price
   v. Digit. Equip. Corp., 

 (5th Cir. 1988) (per curiam)
   (“Although we liberally construe the briefs of pro se appellants, we also
   require that arguments must be briefed to be preserved.” (citations
   omitted)). Instead, Christmas says that we should construe his letter dated
   May 2, 2022, as a timely notice of appeal from the district court’s March 31,
   2022, judgment.1
            “A timely filed notice of appeal in a civil case is ‘mandatory and
   jurisdictional.’ Nonetheless, Federal Rule of Appellate Procedure 3 makes
   clear that formality and title are not dispositive of whether a document is a
            _____________________
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             Christmas’s remaining arguments, as well as Hooper’s, misguidedly focus on the
   timeliness of Christmas’s § 2254 petition. That issue is not before us on this appeal. See
   Bailey v. Cain, 

 (5th Cir. 2010) (“A notice of appeal from the denial of a
   Rule 60(b) motion in a civil proceeding does not bring up the underlying judgment for
   review.”).




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Case: 23-30151        Document: 00517060180              Page: 3      Date Filed: 02/08/2024




                                         No. 23-30151


   notice of appeal.” See Bailey, 

 (citation omitted). A document
   acts as the functional equivalent of a notice of appeal so long as it “evinces
   an intent to appeal and contains the identity of the party or parties appealing,
   the judgment or order appealed from, and the court to which the appeal is to
   be taken.” 

 at 765–66.
           Even if Christmas’s letter constitutes a notice of appeal, we cannot
   determine on this record whether his letter was timely filed. Christmas’s
   letter was postmarked on May 3, 2022. Because the postmark date may not
   match the date that Christmas placed his letter in the prison mail system, we
   cannot conclude from the postmark date alone that Christmas’s letter was
   untimely under the prison mailbox rule. See Fed. R. App. P. 4(c). We
   remand for the limited purpose of determining when Christmas placed his
   letter in the prison mail system. See Thompson v. Montgomery, 

 (5th Cir. 1988). Accordingly, we need not presently address the possible
   interaction between Rules 4(c) and 4(d).2
           We therefore AFFIRM the denial of his Rule 60(b) motion and
   REMAND for the limited purpose of determining when Christmas placed
   the letter in the prison mail system.




           _____________________
           2
              Under Rule 4(d), a notice of appeal mistakenly filed in our court is considered
   filed in the district court on the date that we received it. If we applied Rule 4(d) alone,
   Christmas’s letter would be untimely because we received it on May 5, 2022, after the May
   2 deadline to appeal.




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