Opinion
90 CR. 553(KMW).
November 30, 2008
OPINION and ORDER
In a July 24, 2008 order ("Order"), this Court denied Defendant Delileon's ("Defendant") pro se motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 to the Sentencing Guidelines.
By Affidavit dated September 9, 2008 ("Affidavit"), Defendant informs the Court that he never received a copy of the Order and asks the Court to grant him "enough time" to appeal.
For the reasons discussed below, the Court construes Defendant's Affidavit as a motion to extend time to file a notice of appeal and as a notice of appeal, both filed September 9, 2008. In light of the extraordinary good cause shown, the Court deems its Order reissued on September 8, 2008, and accordingly, finds Defendant's notice of appeal to be timely. In the alternative, if the Second Circuit rejects this Court's reissuance of the Order, the Court finds Defendant's notice of appeal to be untimely, but notes that if Defendant proceeds to file his appeal and the government does not object to the untimeliness of his notice, the Second Circuit would still be able to consider Defendant's appeal on its merits.
I. Background
On March 3, 2008, Defendant moved this Court for a sentence reduction pursuant to § 3582(c)(2), in light of Amendment 706 to the Sentencing Guidelines, which retroactively lowers sentences for certain crack offenses. Because Defendant's offense involved more than 4.5 kilograms of crack, the Court concluded that Defendant was ineligible for a sentence reduction. On July 22, 2008, the Court denied Defendant's motion. On July 24, 2008, the Court's Order denying his motion was entered on his docket sheet.
On July 25, 2008, the Court's administrative staff mailed a copy of the Order to Defendant's prison address in Fairton, New Jersey ("Fairton prison"). Unbeknownst to the Court, Defendant was transferred from the Fairton prison to a prison in Philipsburg, Pennsylvania ("Philipsburg prison") on July 21, 2008. As a result, Defendant did not receive the Order.
On August 1, 2008, the Order was returned to the Court marked "Return to Sender[.] Cannot Identify [Inmate] by Name or Number." Upon receipt of this returned mail, the Court's administrative staff would normally have used the Bureau of Prison's Inmate Locator to find a new address for Defendant, and then would have resent the Order to Defendant at that new address. Because a key staff member was away when the Order was returned to the Court, this procedure was not followed. The Order was never resent to Defendant.
At some point during August 2008, Defendant obtained a copy of his docket sheet. Only by reading the relevant entry on the docket sheet did Defendant learn that his motion for resentencing had been denied.
On September 1, 2008, Defendant submitted an Inmate Request Form to officials at the Philipsburg prison. In the Inmate Request Form, Defendant asked prison officials to confirm that the Order was never received so that he might "salvage the right to appeal." On September 3, 2008, prison officials handwrote a response on Defendant's Inmate Request Form, confirming that Defendant did not receive the Order. Prison officials then returned the Inmate Request Form to Defendant.
On September 9, 2008, Defendant forwarded his Affidavit and the Inmate Request Form to the Court. In his Affidavit, Defendant asks the Court for "enough time" to appeal the Court's Order.
II. Analysis
The Court construes Defendant's Affidavit as a motion to extend time to file a notice of appeal, pursuant to Federal Rule of Appellate Procedure 4(b)(4), and as a notice of appeal. See Grune v. Coughlin, 913 F.2d 41, 43 (2d Cir. 1990) (construing a letter from appellant to the court as a notice of appeal, despite the fact that it was "technically deficient," because "a notice of appeal filed by a pro se litigant must be viewed liberally").
A. Rules for Filing a Notice of Appeal
Federal Rule of Appellate Procedure 4(b) governs the procedures for filing a notice of appeal following the denial of a motion for resentencing pursuant to § 3582(c)(2). United States v. Arrango, 291 F.3d 170, 172 (2d Cir. 2002).
Rule 4(b) specifies that a defendant must file a notice of appeal in the appropriate district court within ten days of entry of the order the defendant wishes to appeal. If a defendant fails to file a notice of appeal within ten days, the district court may, upon a finding of excusable neglect or good cause, grant one thirty-day extension of time "before or after the time has expired, with or without motion and notice." Fed.R.App.P. 4(b)(4). If a defendant fails to file a notice of appeal within the additional thirty-day period and the government objects to the untimeliness of the notice of appeal, the appellate court must refuse to hear defendant's appeal. United States v. Frias, 521 F.3d 229, 233 (2d Cir. 2008).
Prior to Frias, the time limits of Rule 4(b) were construed as jurisdictional in the Second Circuit. If a defendant failed to file timely notice of appeal in the district court, the Second Circuit would refuse to hear the case, regardless of whether the government objected. See, e.g., United States v. Batista, 22 F.3d 492, 493 (2d Cir. 1994) (stating that "the untimely filing of a notice of appeal is a jurisdictional defect that necessitates dismissal of the appeal without reaching its merits").
In Frias, the Second Circuit held that the time limits of Rule 4(b) are not jurisdictional. As a result, the Second Circuit is no longer required to dismiss an appeal because of a defendant's untimely notice of appeal, as long as the government does not object. Frias did not resolve, however, whether the Second Circuit is still permitted to dismiss an appeal sua sponte because of untimely notice.
If the government does object, Rule 4(b) remains "mandatory and inflexible." Frias, 521 F.3d at 234.
Federal Rule of Appellate Procedure 4(c) liberalizes these time restraints slightly for prisoners. If an inmate confined in an institution files a notice of appeal pursuant to Rule 4(b), notice is timely as long as placed in the institution's internal mail system on or before the last day for filing. Fed.R.App.P. 4(c).
B. Timeliness of the Notice of Appeal
Applying Rule 4(b) to the instant case, the Court finds that Defendant's notice of appeal is, at best, untimely by one day. The Order denying Defendant's motion was entered on July 24, 2008. As a matter of right, Defendant had until August 7, 2008 to file his notice of appeal. Assuming an extension of time pursuant to Rule 4(b)(4), the final day on which Defendant could have filed a notice of appeal was September 8, 2008. Defendant's Affidavit was mailed to the Court, and thus "filed" pursuant to Rule 4(c), on September 9, 2008, one day after this deadline. The Court, therefore, finds Defendant's motion for an extension of time to file a notice of appeal to be moot. Because Defendant's notice of appeal was filed thirty-one days after the Rule 4(b) deadline, the requested thirty-day extension of time would be unavailing to Defendant.
The Court computes this initial ten day period in accordance with Rule 26(a)(2)'s direction to exclude "intermediate Saturdays, Sundays, and legal holidays when the period is less than 11 days." Fed.R.App.P. 26(a)(2).
C. Preserving Defendant's Ability to Appeal
Given the facts asserted in Defendant's Affidavit, the Court, like many other courts faced with applying the bright-line time requirements of Rule 4(b) to a pro se inmate lacking notice of court action, is concerned by the harshness of Rule 4(b). See, e.g., James v. United States, 459 U.S. 1044, 1045 (1982) (Brennan, J., opinion respecting denial of writ of certiorari) (stating that the strict construction of Rule 4(b) to "penalize an uncounselled and incarcerated criminal defendant for a clerical error that was none of his doing and of which he had no knowledge would seem to me not only unduly harsh but resoundingly unjust"); United States v. Green, 89 F.3d 657, 661 (9th Cir. 1996) (acknowledging that Rule 4(b) "can be harsh" when applied to a criminal defendant lacking notice of court action); United States v. Lasko, No. 3:03-CR-0210 (N.D.N.Y. 2008) (noting that applying Rule 4(b) to a defendant who did not receive notice of order he wished to appeal produced "a seemingly harsh result with possible due process implications"); United States v. Matos, No. CRIM. 90-201-26, 1999 WL 1210829, at *4 (E.D. Pa. Dec. 10, 1999) (concluding that "[i]f one were rewriting [Rule 4(b)], one might be tempted to make allowance for the failure of a clerk to provide notice of the entry of an order").
This case entails numerous extraordinary facts that warrant Defendant's being permitted to pursue his appeal, in spite of the strictures of Rule 4(b). First, Defendant is a pro se prisoner, and courts have a duty to treat such litigants with leniency. Second, the Court bears some responsibility for Defendant's untimeliness. Defendant did not receive notice of the Court's Order because of a confluence of events, including the Court's failure to adhere to its own administrative procedures. Third, Defendant made impressive efforts to preserve his rights, not only by monitoring his docket sheet, but also by gathering proof that he did not receive the Order from prison officials before contacting the Court. In fact, Defendant's Affidavit may ultimately have been untimely only because he chose to first present his case to prison officials, rather than to the Court, a mistake that again highlights the harshness of Rule 4(b) as applied to an incarcerated Defendant without counsel.
The Court takes this opportunity to point out, however, that the administration of justice is best served when parties inform the Court of changes in their contact information as quickly as possible.
Because of the extraordinary good cause shown, the Court finds that equity requires extraordinary measures to protect Defendant's rights. Accordingly, the Court deems its Order reissued on September 8, 2008.
Some district courts, in an attempt to circumvent the unforgiving nature of Rule 4(b), have "reissued" orders for the purpose of triggering a new ten day period in which timely notice of appeal may be filed.
Courts of appeals that have considered this issue have generally held that district courts do not have the power to circumvent Rule 4(b) by reissuing orders. See, e.g., United States v. Rapoport, 159 F.3d 1 (1st Cir. 1998) (finding Defendant's notice of appeal untimely because court did not have the power to re-sentence Defendant "for the sole and exclusive purpose of permitting him an opportunity to take a direct appeal" in contravention of the time limits of Rule 4(b)); United States v. Buzard, 884 F.2d 475 (9th Cir. 1989) (finding Defendant's notice of appeal untimely because court was not authorized to deem order filed at a later date for the purpose of extending period to file notice of appeal beyond time period allowed by Rule 4(b)). But see United States v. Zislovich, No. 04-10563, 2005 WL 2250741, at *1 (9th Cir. Sept. 16, 2005) (holding that the district court's reissuing of its decision to allow a defendant time to file notice of appeal, given that defendant had not received notice of the court's judgement, did not violate Rule 4(b) because "the district court was sitting as an appellate court and appellate courts generally may reissue their mandates").
Because the Second Circuit has not yet indicated a similar disapproval of this practice, the Court finds it within its discretion to reissue its Order in this case.
The Order, as reissued, triggers a new ten-day period for filing a notice of appeal pursuant to Rule 4(b). Because Defendant's notice of appeal was filed within ten days of the date of the Order's reissuance, the Court finds Defendant's notice of appeal to be timely.
In the alternative, if the Second Circuit rejects this Court's reissuance of the Order, the Court finds Defendant's appeal to be untimely, and is consequently unable to guarantee that Defendant's appeal will be heard.
The Court emphasizes, however, that in light of the Second Circuit's decision in Frias, the Second Circuit is able to hear an appeal for which the notice of appeal is untimely, as long as the government does not object.
III. Conclusion
For the reasons stated above, the Court deems its Order reissued on September 8, 2008 and accordingly finds Defendant's notice of appeal to be timely. In the alternative, if the Second Circuit rejects this Court's reissuance of the Order, the Court finds Defendant's notice of appeal to be untimely, but notes that as long as the government does not object to the untimeliness of Defendant's notice of appeal, the Second Circuit would still be able to consider Defendant's appeal on its merits.
SO ORDERED.