Opinion
Criminal Action 95-192, Section "T" (4)
January 3, 2002
The Fifth Circuit has remanded the above-captioned matter to this Court for the limited purpose of determining whether the untimely filing of the defendant's Notice of Appeal was due to "excusable neglect" or "good cause" pursuant to Rule 4(b) of the Federal Rules of Appellate Procedure. In response to this inquiry, this Court finds that neither "excusable neglect" nor "good cause" were proven by the defendant.
Defendant originally filed an "Application of Leave to File Motion Under Rule 35(a) Imposition of Illegal Sentences" which was denied by this Court on April 23, 2001. Defendant then filed a "Motion for Leave to File to Alter or Amend the Judgment of 19 Day of April, 2001 per G. Thomas Porteous, Jr." asking this Court to reconsider his original motion; this Motion to Reconsider was denied on September 14, 2001. From this, defendant filed his Notice of Appeal on October 16, 2001. Rule 4(b)(1) gives a defendant in a criminal matter ten (10) days in which to file an appeal. F.R.A.P. 4(b)(1). Rule 4(b)(4) grants an additional thirty (30) days to appeal upon a showing to the Court of "excusable neglect" or "good cause". F.R.A.P. 4(b)(4). "In criminal cases, this court has customarily treated a late notice filed after the expiration of the ten-day period and before the lapse of forty days (tell plus thirty), as a motion for a determination as to whether excusable neglect entitles a defendant to an extension of time to appeal". U.S. v. Awalt, 728 F.2d 704, at 705 (5th Cir. 1984), citing U.S. v. Shillingford, 568 F.2d 1106 (5th Cir. 1978); U.S. v. Guiterrez, 556 F.2d 1217, at 1218 (5th Cir. 1977).
The guideposts of "excusable neglect" were laid out by the Supreme Court in Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 113 S.Ct. 1489 (1993). Pioneer was a bankruptcy action which dealt with Bankruptcy Rule 9006, however the Fifth Circuit has held that the factors developed are to be applied when determining "excusable neglect" in the context of Rule 4(b)(4). U.S. v. Clark, 51 F.3d 42, at 44 (5th Cir. 1995). The Pioneer factors are: "danger of prejudice to the [defendant], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith". Pioneer, 507 U.S. at 395, 113 S.Ct. at 1498. The Court held, however, that "inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute `excusable' neglect". U.S. v. Clark, 51 F.3d at 43; Pioneer 507 U.S. at 392, 113 S.Ct. at 1496.
Petitioner has had ample opportunity to be heard before this Court: after denial of his original application, the Court then reconsidered and denied the application in his Motion to Reconsider. Additionally, defendant has not met any of the factors from Pioneer which would excuse his untimely filing. Furthermore, petitioner has failed to show any prejudice caused by the denial of his appeal; his Notice of Appeal was filed thirty-two (32) days after the denial of his Motion to Reconsider; and, defendant has not proven any reason for his delay in filing. Lastly, defendant filed his own Notice of Appeal, thus showing that his filing was clearly within his own control.
Accordingly,
IT IS ORDERED that defendant Dwayne D. Dorsett did not prove "excusable neglect" or "good cause" pursuant to the Federal Rules of Appellate Procedure Rule 4.