Opinion
Case Nos. 6:04-cv-1204-Orl-19JGG, (6:00-cr-009-Orl-19JGG).
February 23, 2006
ORDER
This case is before the Court on the Eleventh Circuit Court of Appeal's limited remand to determine when Petitioner delivered his pro se notice of appeal (Doc. No. 40) to prison authorities for mailing. See Doc. No. 47.
A review of the docket reveals that Petitioner filed a motion for extension of time to file a certificate of appealability (Doc. No. 36, filed October 25, 2005), which this Court directed the Clerk of the Court to treat as a notice of appeal. See Doc. No. 37, filed November 15, 2005. The docketing clerk failed to follow the Court's direction and did not treat the motion as a notice of appeal. The docketing clerk has now been directed to correct this error.
The Judgment that Petitioner is appealing was entered on August 5, 2005 (Doc. No. 26). On September 6, 2005, he filed a motion for reconsideration (Doc. No. 34), which was denied by Order dated September 20, 2005 (Doc. No. 35). Therefore, it appears that the October 25, 2005, notice appeal, was timely filed. United States v. Arrate-Rodriguez, No. 04-15419, 2005 WL 3475753, at *3 (11th Cir. December 20, 2005) ("[A] motion for rehearing or reconsideration of the final judgment or other appealable order in a criminal proceeding will extend the time for filing a notice of appeal if such motion is filed within the period allotted for filing a notice of appeal.").
The Court stands ready to carry out any other direction of the Eleventh Circuit Court of Appeals if this finding is insufficient to satisfy the dictates of the limited remand. The Clerk of the Court is directed to return the record, as supplemented, to the Eleventh Circuit Court of Appeals.
DONE AND ORDERED.