Opinion
Crim. No. 93-00145-AH
April 26, 2001
ORDER
This matter is before the Court on Defendant's purported Motion to Set Aside, Vacate or Correct Sentence filed pursuant to 28 U.S.C. § 2255, docketed April 17, 2001 (Doc. 177). Defendant proffers this Motion subsequent to the revocation of his supervised release on February 20, 2001 (Doc. 175). On that date, pursuant to the provisions of 28 U.S.C. 3583(e)(3), Defendant was sentenced by this Court to a term of 16 months in the custody of the United States Bureau of Prisons. Though Defendant admitted to violating the terms of his supervised release resulting in said imprisonment, he now seeks to appeal his sentence via a Motion brought pursuant to 28 U.S.C. § 2255.
The Federal Rules of Appellate Procedure, Rule 4(b)(1)(A) reads, in pertinent part: "In a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after the . . .: (i) the entry of . . . the judgement . . . ." Defendant's current Motion, which the Court would have construed as a Notice of Appeal if said Motion had been filed within 10 days of the imposition of the sentence on February 20, 2001, must therefore be construed as a Motion for Extension of Time to Appeal. The Motion is therefore subject to the provisions of the F.R.A.P., Rule 4 ((b)(4), which state in pertinent part: "Upon a finding of excusable neglect or good cause, the district court may . . . extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4 (b)."
As previously indicated, Defendant was entitled to file a Notice of Appeal as a matter of right up until March 1, 2001, which was 10 days from the date his sentence was entered on February 20. Not having taken advantage of that opportunity, Defendant was then entitled to file a Motion to Request an Extension of Time, so long as the Motion was filed no later than thirty days beyond March 1, 2001. Defendant's signature on his current Motion reflects, however, a submission date of April 14, 2001 (docketed by the court clerk on April 17, 2001), which, even considering the relative leniency of the mailbox rule to which Defendant would have otherwise been entitled, is well past the deadline imposed by the rules cited above.
The Court is without discretion to grant Defendant's Motion for an Extension of Time in which to file a Notice of Appeal, as his current Motion well exceeds the 30 day time limit imposed under the Appellate Rules. Accordingly, Defendant's Motion is hereby DENIED.