Jeffrey Spivack v. United States

The Eleventh Circuit has misapprehended the scope and fundamental nature of Petitioner’s appeal: Petitioner filed an appeal contesting the district court’s involuntary recharacterization—over Petitioner’s repeated written objections—of a motion to dismiss pursuant to Fed. R. Crim. P. Rule 12(b)(2) as a motion to vacate under 28 U.S.C. § 2255. The Eleventh Circuit disregarded the explicit, unambiguous notice of appeal as well as Petitioner’s initial brief, both of which specified the two individual orders appealed—orders that were completely separate from the order purporting to deny a § 2255—and then re-docketed and processed Petitioner’s appeal as a § 2255 appeal and motion for Certificate of Appealability (COA). The Eleventh Circuit persisted in this misapprehension even after being advised with exhaustive motions for reconsideration not once, but twice. Due to the Eleventh Circuit’s erroneous actions, Petitioner’s appeal was never decided on the merits, and the disputed recharacterization was never addressed. The following question is presented: May a Court of Appeals disregard the scope of an appeal when the appellant has clearly articulated the scope and nature of the appeal by identifying the specific final orders appealed in a notice of appeal, and further defined the parameters of the appeal in. the initial brief?