Opinion
Civil Action No. 02-20020-01-KHV
September 18, 2002
MEMORANDUM AND ORDER
On May 13, 2002, defendant pled guilty to possessing more than 500 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On August 7, 2002, the Court entered its final order of judgment, sentencing defendant to 120 months in prison. See Judgment (Doc. #27). This matter comes before the Court on defendant's Motion For Extension Of Time (Doc. #30) filed August 29, 2002; defense counsel's Motion To Withdraw (Doc. #28) filed August 20, 2002; and defendant's motion for court-appointed counsel (Doc. #31) filed August 29, 2002. For reasons stated below, the Court sustains in part defendant's motion for extension of time and overrules the remaining motions.
I. Extension Of Time
Defendant seeks a 30-day extension of time to file a notice of appeal. Under Rule 4(b)(1), Fed.R.App.P., defendant had 10 days, or until Monday, August 19, 2002, to file a notice of appeal. On Thursday, August 22, 2002, three days after the appeal time expired, defendant filed his Notice Of Appeal (Doc. #29).
Because August 17, 2002 fell on a Saturday, defendant had until Monday, August 19, 2000 to file a notice of appeal. See Rule 26(3), Fed.R.App.P.
Pursuant to Rule 4(b)(4), Fed.R.App.P., the Court may extend the time to file a notice of appeal up to 30 days "[u]pon a finding of excusable neglect or good cause." In determining what constitutes excusable neglect, the Court must consider all relevant circumstances surrounding defendant's omission. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993). The following factors are relevant: (1) the danger of unfair prejudice to the nonmoving party; (2) the length of delay and its potential impact on the proceedings; (3) the reason for delay, including whether it was in the reasonable control of defendant; and (4) whether defendant acted in good faith. Id.; see also City of Chanute, Kan. v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994).
Defendant states that he filed a late notice of appeal because of delayed communication to counsel regarding his desire to appeal. Defendant did not inform counsel that he wanted to appeal at the time of sentencing. Rather, defendant informed counsel of his desire to appeal by letter dated August 8, 2002 and postmarked August 12, 2002. Counsel does not state when he received the letter, but he states that he received it "during a hectic week after counsel returned from a long-planned vacation." Motion For Extension Of Time at 2. Although the Tenth Circuit has never explicitly addressed the issue of mailing time presumptions, it has implicitly sanctioned a five-day or a three-day presumption. See Lozano v. Ashcroft, 258 F.3d 1160, 1165 (10th Cir. 2001). Under a three-day presumption, counsel would have received the letter on Thursday, August 15, two business days before the notice of appeal was due. Under a five-day presumption, counsel would have received the letter on the day the notice of appeal was due.
The letter indicates that defendant sent a copy of the letter to the Court, but the Court has no record of receiving it.
Five days from August 12 was Saturday, August 17. The Court assumes, however, that counsel would not have received the letter until the next business day, Monday, August 19.
On this record, the Court finds that the relevant factors weigh in favor of extending the time to appeal by three days. A three-day extension will not unfairly prejudice the government or unduly delay the proceedings. Moreover, it appears that defendant attempted in good faith to notify counsel of his desire to appeal, but that counsel did not receive defendant's letter within a reasonable time to timely file the notice of appeal. Under these circumstances, the Court finds that excusable neglect and/or good cause warrants extending the time to file a notice of appeal by three days to August 22, 2002.
To the contrary, denying defendant's motion would likely result in prolonged proceedings under 28 U.S.C. § 2254. See Peguero v. United States, 526 U.S. 23, 28 (1999) (when counsel fails to file requested appeal, defendant entitled to new appeal without showing of likely merit).
II. New Counsel
Defendant asks the Court to allow current counsel to withdraw and appoint new counsel. Pursuant to 10th Cir.R. 46.3, an attorney who files a notice of appeal in a criminal case has entered an appearance in the Tenth Circuit Court of Appeals and may not withdraw without the permission of that court. Accordingly, defendant should address his request to the Tenth Circuit.
IT IS THEREFORE ORDERED that defendant's Motion For Extension Of Time (Doc. #30) filed August 29, 2002 be and hereby is SUSTAINED in part. Pursuant to Rule 4(b)(4), Fed.R.App.P., the time for defendant to file a notice of appeal is extended by three days to August 22, 2002.
IT IS FURTHER ORDERED that defense counsel's Motion To Withdraw (Doc. #28) filed August 20, 2002 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that defendant's motion for court-appointed counsel (Doc. #31) filed August 29, 2002 be and hereby is OVERRULED.