United States of America,plaintiff-Appellee v. Ruben Zuno-Arce

Citations: 245 F.3d 1108; 2001 U.S. App. LEXIS 11076; 2000 WL 33259618Docket: 98-56770

Court: Court of Appeals for the Ninth Circuit; April 10, 2001; Federal Appellate Court

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In the case of United States v. Ruben Zuno-Arce, the Ninth Circuit Court of Appeals amended its previous opinion, which involved Zuno-Arce's appeal regarding a certificate of appealability (COA). Circuit Judge James R. Browning dissented, asserting that the application of new appellate rules to pending appeals should be based on the principle of justice and practicality. Zuno-Arce's COA had been partially denied more than 35 days before the new Circuit Rule 22-1(d) became effective, making compliance impractical and unjust.

Browning contended that Zuno-Arce appropriately relied on the prior rule from Cruz-Mendoza I, as no existing federal or local rules required a motion to expand the COA within a grace period established by the courts. He emphasized that the actual notice rule under Federal Rule of Appellate Procedure 47(b) should prevent any sanctions for noncompliance unless there was actual notice of the new requirement, which was not the case here. Additionally, he noted that the relevant circuit case law did not support the application of the new rule to pending cases, further reinforcing his dissent against imposing the new 35-day filing requirement retroactively.

Federal Rule of Appellate Procedure 47(b) permits the application of Circuit Rule 22-1(d) only if the appellant, Zuno-Arce, received "actual notice" of the proposed requirement, which he did not. Consequently, the panel is barred from imposing a new procedural requirement that disadvantages him, as doing so would unjustly penalize him for not anticipating the court's interpretation of a rule lacking clear guidance on its applicability to pending cases. The dissent notes that Zuno-Arce's briefing on uncertified issues should be seen as a motion to expand his partial Certificate of Appealability (COA), and emphasizes that previous cases, such as Volkswagenwerk, support avoiding injustice by not applying new procedural rules retroactively. 

The dissent argues that the notice of appeal should be treated as a request for a COA, consistent with the Federal Rules of Appellate Procedure and previous rulings. It clarifies that the imposition of local rules must not lead to a loss of rights due to a reasonable interpretation of those rules. The dissent further cites prior decisions indicating that the new rule only applies to appeals filed after its effective date, reinforcing the notion that Zuno-Arce's interpretation was reasonable. The discussion also clarifies that similar procedural issues in related cases were resolved in favor of the appellants, preserving their rights under the previous rules.

Zuno-Arce's knowledge of the 35-day filing requirement was established at the latest by September 9, 1999, when he referenced the rule in his opening brief. However, the rule does not clarify its applicability to pending cases. Even if the Hiivala case suggested that Rule 22-1(d) could apply to cases with a partial denial of COAs before the rule's effective date, Hiivala was not published until after Zuno-Arce filed his opening brief. Thus, it is unreasonable to assert he had notice of this application until the Government referenced Hiivala in its December 6, 1999 response brief. Following this notice, Zuno-Arce acted promptly, filing a motion to expand his COA within 14 days. He consistently maintained that Rule 22-1(d) did not pertain to his case, rejecting the notion that any event, such as the appointment of counsel or the publication of Hiivala, triggered the 35-day filing period.