Opinion
2:21-CR-20015-001
03-31-2022
UNITED STATES OF AMERICA PLAINTIFF v. JOSHUA DON LINEBERRY DEFENDANT
OPINION AND ORDER
P.K. HOLMES, III U.S. DISTRICT JUDGE
Before the Court is Defendant Joshua Don Lineberry's motion (Doc. 61) for extension of time to file a notice of appeal of the final judgment (Doc. 53) entered in his criminal case and motion (Doc. 62) for leave to appeal in forma pauperis.
On February 9, 2022, Lineberry was sentenced to 34 months imprisonment for one count of conspiracy to commit wire fraud and odometer tampering. Judgment was entered on February 14, 2022. Lineberry was represented by retained counsel in all previous proceedings in his criminal case. Lineberry claims he instructed his attorney to file a notice of appeal after judgment was entered, but his attorney refused to do so. On March 14, 2022, Lineberry filed a notice of appeal pro se, but in a March 23 letter the Eighth Circuit Court of Appeals notified Lineberry that his appeal was untimely. On March 24, Lineberry's counsel of record filed a motion to withdraw, which the Court granted on March 25. On March 28, Lineberry filed the instant motion for extension of time to file a notice of appeal and motion for leave to appeal in forma pauperis.
Because the judgment in Lineberry's criminal case was filed February 14, 2022, the deadline for Lineberry to file a notice of appeal was February 28, 2022. Fed. R. App. Proc. 4(b)(1)(A). Federal Rule of Appellate Procedure 4(b)(4) allows the Court to extend the time to file a notice of appeal if there is excusable neglect or good cause. Any extension cannot exceed 30 days past the time the notice of appeal must otherwise be filed. Id. at 4(b)(4).
The Court finds that there is good cause to extend the time to file a notice of appeal and will therefore extend the deadline to March 30, 2022. As such, Defendant's March 14, 2022, notice of appeal is timely, “and this appeal may . . . proceed without further notice.” United States v. Campbell, 971 F.3d 772, 774 (8th Cir. 2020) (quoting United States v. Starks, 840 F.3d 960, 961 (8th Cir. 2016)) (allowing the district court to find good cause under Rule 4(b) after untimely notice of appeal was filed and the deadline under Rule 4(b)(4) had passed).
Moving to Lineberry's motion (Doc. 62) to appeal in forma pauperis, the Court finds that Defendant has not met the requirements listed under Federal Rule of Appellate Procedure 24, and therefore his motion will be denied.
Under Rule 24, if a party wishes to appeal in forma pauperis, he must file a motion with the Court and attach an affidavit which “(A) shows . . . the party's inability to pay or to give security for fees and costs; (B) claims an entitlement to redress; and (C) states the issues that the party intends to present on appeal.”
Lineberry's motion does not state the issues he intends to present on appeal, and is therefore insufficient. Additionally, Lineberry's motion states that he and his spouse have a combined income of $117,840 a year. Prior to his attorney withdrawing from this case, Lineberry was represented by retained counsel, whom he says he paid $7,000 to $10,000. Based on this information, the Court is not convinced of Lineberry's inability to pay or give security for fees and costs. Therefore, Lineberry's motion to appeal in forma pauperis is DENIED, and Lineberry is directed to pay the filing fee for his notice of appeal.
IT IS THEREFORE ORDERED that Defendant's motion (Doc. 61) for extension of time to file a notice of appeal is GRANTED. Defendant's March 14, 2022, notice of appeal is accepted as timely, and no further filing is required.
IT IS FURTHER ORDERED that Defendant's motion (Doc. 62) to appeal in forma pauperis is DENIED.
IT IS ORDERED