Opinion
EP-02-CR-028-PRM.
June 8, 2005
ORDER GRANTING DEFENDANT'S MOTION FOR EXTENSION OF TIME TO APPEAL
On this day, the Court considered Defendant Antonio Gomez-Diaz's ("Defendant") Motion for Extension of Time to Appeal ("Motion") filed on December 16, 2004, in the above-captioned cause. After due consideration, the Court is of the opinion that the Defendant's Motion should be granted for the reasons set forth below.
Defendant requests permission to untimely file a notice of appeal from the Court's judgment revoking his period of supervised release and sentencing him to 18 months imprisonment. Judgment revoking supervised release was entered on November 22, 2004. Thus, pursuant to Federal Rule of Appellate Procedure 4(b)(1)(A), his notice of appeal should have been filed on or before December 7, 2004. Defendant filed a notice of appeal on December 16, 2004, nine days after his notice of appeal was due. The Court construes an untimely notice of appeal as a motion for a determination whether Defendant is entitled to an extension of time to appeal. United States v. Golding, 739 F.2d 183, 184 (5th Cir. 1984).
The Court notes that Defendant filed the notice of appeal pro se from his place of incarceration. Pursuant to Federal Rule of Appellate Procedure 4(c)(1), a prisoner's pro se notice of appeal is timely filed if placed in the institution's internal mail system on or before the last day for filing a timely notice of appeal. FED R. APP. P. 4(c)(1). However, Defendant's notice of appeal is dated December 13, 2004, which is six days after his notice of appeal was due. The Court concludes that Defendant's notice of appeal was not timely filed under Federal Rule of Appellate Procedure 4(c)(1) because it could not have been placed in the institution's mail system on or before December 7, 2004.
Pursuant to Rule 4(b)(1)(A) of the Federal Rules of Appellate Procedure, a defendant's notice of appeal must be filed within ten days of the entry of judgment. A district court may, however, upon a finding of excusable neglect or good cause, extend the time to file a notice of appeal for a period not to exceed thirty days from the time otherwise prescribed by Rule 4(b)(1)(A). FED. R. APP. P. 4(b)(4).
The Court then must determine whether excusable neglect is present and would warrant permitting Defendant's untimely notice of appeal. In determining the presence of excusable neglect a court should take account of all relevant circumstances including the possible prejudice to the late filer, the length of the delay and the impact on judicial proceedings, the reason for the delay, and whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993).
In this instance, a failure of communication occurred between the Defendant and Counsel regarding Defendant's desire to appeal his sentence within the time prescribed by Rule 4(b)(1)(A). Defendant filed a notice of appeal himself, only nine days after expiration of the time period delineated in Rule 4(b)(1)(A), which is well within the thirty day extension period.
Thus, the Court finds that excusable neglect is present, and that the Defendant should be allowed to file his notice of appeal.
Accordingly, IT IS HEREBY ORDERED, that Defendant Antonio Gomez-Diaz's Motion for Extension of Time to Appeal is GRANTED.