Opinion
CRIMINAL ACTION NUMBER: 09-398 SECTION: "F"(5)
11-07-2014
UNITED STATES OF AMERICA v. THERON JAMES
REPORT AND RECOMMENDATION
Pursuant to a remand by the United States Court of Appeals for the Fifth Circuit (rec. doc. 516) and a subsequent order of reference from the presiding District Judge (rec. doc. 517), this matter comes before the Court for a determination of whether the untimely filing of Defendant's notice of appeal was due to excusable neglect or good cause.
The Court previously granted Defendant's motion for appointment of counsel on appeal and Defendant's motion to proceed on appeal in forma pauperis. (Rec. docs. 512, 515). Implicit with the granting of those motions was a finding of excusable neglect. United States v. Walker, 404 Fed.Appx. 841 (5th Cir. 2010)(citing United States v. Lister, 53 F.3d 66, 68 (5th Cir. 1995)); United States v. Hambrick, 95 F.3d 44 (5th Cir. 1996)(table); United States v. Quimby, 636 F.2d 86, 89 (5th Cir. Unit A 1981). It will be so recommended.
RECOMMENDATION
For the foregoing reasons, it is recommended that an order be entered finding that the untimely filing of Defendants' notice of appeal was due to excusable neglect.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation contained in a magistrate judge's report and recommendation within fourteen days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United States Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996) (en banc).
New Orleans, Louisiana, this 7th day of November, 2014.
/s/_________
MICHAEL B. NORTH
UNITED STATES MAGISTRATE JUDGE