Opinion
00 Civ. 8544 (LAK)
October 17, 2002
ORDER
Movant applies for an extension of time within which to file a notice of appeal. As the need for an extension is not self evident, the procedural context must be reviewed with some care.
The order denying the motion pursuant to 28 U.S.C. § 2255 was entered on June 6, 2002. The notice of appeal was filed on July 2, 2002 and thus within the requisite period for appealing from the denial of a Section 2255 motion. See Fed.R.App.P. 4(a); Rule 11, Rules Governing Section 2255 Proceedings for the United States District Court.
The only hint in the application as to why counsel seeks an extension of time is the statement that "this Court converted Petitioner's claim based on newly discovered evidence as a Rule 33 motion . . ." (Edwards Aff. ¶ 3) (sic) This presumably is a reference to the Court's comment, in the second of its opinions on the Section 2255 motion, that it was unnecessary to decide whether Ida's request for relief on the ground of newly discovered evidence was cognizable under Section 2255 because the claim would be available on a motion for a new trial under Fed.R.Crim.P. 33, that such a motion would be timely, and that the Court would treat the argument under that rule. Ida v. United States, 207 F. Supp.2d 171, 180 (S.D.N.Y. 2002). So the Court infers that Ida apprehends that the filing of a notice of appeal 26 days after the entry of the order on June 6, 2002 was untimely insofar as the notice of appeal seeks to bring up the newly discovered evidence point.
Whether this apprehension is well founded appears to be an interesting question, but there is no need to decide it. Fed.R.App.P. 4(b)(4) permits this Court to extend the time to file a notice of appeal for a period not to exceed thirty days from the expiration of the time otherwise prescribed upon a showing of excusable neglect or good cause. In this case, the notice was not filed until July 2, 2002 as a result of the illness of Ida's counsel. Accordingly, the motion for an extension of time is granted to the extent that the time within which to file Ida's notice of appeal from the June 6, 2002 order, assuming the filing of the notice of appeal on July 2, 2002 was untimely with respect to the newly discovered evidence point, is extended nunc pro tunc to and including July 2, 2002 with respect to that issue.
SO ORDERED.