Opinion
10-20009-JAR
06-08-2022
UNITED STATES OF AMERICA, Plaintiff, v. MARLO TOOMBS, Defendant.
ORDER
JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE.
On May 6, 2022, this Court entered a Memorandum and Order that: 1) denied Defendant Marlo Toombs' pro se Motion for Relief under Rule 60(b); and 2) construed and dismissed his pro se Motion for Compassionate Release under 18 U.S.C. § 3582(c) as an unauthorized second or successive motion under 28 U.S.C. § 2255, and denied a certificate of appealability (“COA”).This matter is before the Court on Defendant's Motion to Extend Time to File Notice of Appeal Pursuant to Fed. R. App. P. 4(a)(5) (Doc. 199), or in the alternative, a Notice of Appeal. For the reasons explained below, Defendant's motion for extension of time is granted.
Doc. 194 at 8-14.
Id. at 14-18.
Under the federal prisoner mailbox rule, Defendant's motion is considered filed when he delivered the pleading to prison officials for mailing on June 1, 2022, the postmark date. See Burger v. Scott, 317 F.3d 1133, 1137 (10th Cir. 2003). The Court received Defendant's motion on June 6, 2022. Doc. 199.
An appeal from both parts of the Court's May 6, 2022 Memorandum and Order is governed by Rule 4(a)(B), which gives a party 60 days after entry of the judgment or order appealed from to file a notice of appeal when the United States is a party. Accordingly, Defendant has until July 6, 2022, to file a notice of appeal. Rule 4(a)(5) authorizes the Court to extend this period of time not to exceed 30 days from the expiration of the time prescribed by Rule 4(a).
See Rule 11(b) of the Rules Governing Section 2255 Proceedings (Fed. R. App. P. 4(a) governs the time to file an order entered under these rules); United States v. Pullen, 285 Fed.Appx. 535, 537 (10th Cir. 2008) (discussing appeal from Rule 60(b) motion seeking relief from order denying § 2255 motion).
Fed. R. App. P. 4(a)(5)(A)(ii).
Because Defendant moved for an extension before the time prescribed by Rule 4(a) expires, and for good cause shown, the Court extends Defendant's time to file a notice of appeal for 30 days, or up to and including August 5, 2022. The Court notes, however, that because it denied a COA on Defendant's compassionate release motion that was construed and dismissed as an unauthorized second or successive § 2255 motion, he must obtain a COA from the Tenth Circuit Court of Appeals as required by Fed. R. App. P. 22(b) before he may file a notice of appeal on this part of the May 6 Memorandum and Order.
United States v. Haynes, 827 Fed.Appx. 892, 896 (10th Cir. 2020) (citing United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008) (applying COA requirement to the dismissal of an unauthorized second or successive § 2255 motion)).
IT IS SO ORDERED.