Pro se appeal of non-decision dismissed for lack of jurisdiction

            In Marshall v. Commissioner of PA DOC, et al. 16-9000 (10/25/2016), the Third Circuit dismissed this pro se appeal for lack of jurisdiction.  Marshall is a capital inmate with a pending federal habeas petition who moved to proceed pro se.  After additional motions and a psychiatric evaluation, the District Court held a hearing in which parties addressed whether Marshall was competent and whether he could proceed pro se.  At this hearing the District Court specifically stated that it had not yet decided these issues but that it would do so shortly.

            After the hearing, but prior to the announcement of any decision, Marshall filed a pro se appeal of the District Court’s (then non-existent) denial of his motion to proceed pro se.  After that, the District Court issued an order finding Marshall not competent and denying his motion to proceed pro se.  No parties (not Marshall nor his counsel) filed anything further with the Third Circuit after the District Court’s opinion, even though the Third Circuit invited them to do so.

            The Third Circuit dismissed Marshall’s appeal for lack of jurisdiction.  Even though there are circumstances under F.R.A.P. 4(a)(2) and the Cape May Greene doctrine where the Third Circuit may have jurisdiction over an appeal that was filed before it was ripe, those circumstances did not apply to Marshall’s case.  At the very least, FRAP 4(a)(2) and the Cape May Greene doctrine require that the District Court have at least announced an appealable decision, even if the decision may not have been officially entered or there may be other pending issues preventing the entry of a final appealable order.  Neither of those circumstances applied here as the notice of appeal was filed before any decision was made or announced.  Thus, even though Marshall’s motion to proceed pro se has now been denied, his appeal of the denial of his motion was premature and dismissed for lack of jurisdiction.

PS -- Props to all attorneys who continue to act in their client's best interests even when the client is trying to fire you.