Opinion
No. 02-40005-01-SAC.
December 21, 2004
ORDER
By order of the Tenth Circuit filed November 5, 2004, this case was partially remanded to this court for a determination of whether the defendant's failure to comply with the filing requirements of Rule 4(b)(1)(A)(i) was due to excusable neglect or good cause. On remand, the district court directed the defendant to file a statement of reasons showing excusable neglect or good cause as those terms have been defined and applied in Stutson v. United States, 516 U.S. 193, 195 (1996), and United States v. Torres, 372 F.3d 1159, 1161-64 (10th Cir. 2004). The defendant timely filed a pro se statement of reasons, and the government did not file any response.
In Torres, the Tenth Circuit applied the Supreme Court's construction of "excusable neglect" from Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 395 (1993), to Fed.R.App.P. 4(b)(4), including:
The Court held that the determination whether a party's neglect is excusable "is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Id. at 395. Such circumstances include "[1] the danger of prejudice to the [nonmoving party]. [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was within the reasonable control of the movant, and [4] whether the movant acted in good faith." Id.Torres, 372 F.3d at 1162. "`[F]ault in the delay remains a very important factor — perhaps the most important single factor — in determining whether neglect is excusable.'" Id. at 1163 (quoting City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994), cert. denied, 513 U.S. 1191 (1995)). A defense counsel's misreading or misinterpretation of an unambiguous rule does not constitute excusable neglect. Torres, 372 F.3d at 1163.
The defendant filed his pro se notice of appeal ten days past the ten-day deadline but within the thirty-day permissible extension period. The length of this delay is relatively short, and its potential impact on the judicial proceedings is negligible. The government does not articulate any prejudice. The record presently offers no basis for questioning good faith. In explanation of the delay, the defendant writes that he told his appointed counsel after the sentencing hearing to file a notice of appeal and that his counsel failed to do so. To evaluate this alleged reason, the court needs to hear from the counsel who represented the defendant at the resentencing hearing on September 21, 2004.
IT IS THEREFORE ORDERED that the defense counsel at the resentencing hearing on September 21, 2004, shall furnish the court within fifteen days of this order an affidavit explaining why a notice of appeal was not timely filed after the amended judgment of September 30, 2004.
IT IS FURTHER ORDERED that the defendant shall have thirty days after the filing of counsel's affidavit to submit a response and/or affidavit.