U.S. v. Newman

Full title: UNITED STATES OF AMERICA, Plaintiff, vs. SHANE ALLEN NEWMAN, Defendant

Court: United States District Court, D. Kansas

Date published: May 21, 2003

No. 00-40024-11-SAC (D. Kan. May. 21, 2003)

Opinion

No. 00-40024-11-SAC

May 21, 2003.

ORDER

SAM A. CROW, Senior District Judge

By order of the Tenth Circuit filed January 24, 2003, this case was partially remanded to this court for a determination of excusable neglect. On remand, the district court directed the defendant to file a statement of reasons for why his failure to comply with the filing requirements of Fed.R.App.P. 4(b)(1)(A)(i) is based on excusable neglect as that term has been defined and applied in Stutson v. United States, 516 U.S 193, 195 (1996), and Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 388, 395 (1993). The defendant timely filed his statement of reasons, and the government did not file any response.

The defendant filed his pro se notice of appeal four 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 defendant writes that his trial counsel had indicated they would meet to discuss the issues for appeal, but that counsel never visited him nor returned his telephone calls. The defendant also indicates he did not understand until he reached prison that he had received a firearm enhancement as part of his sentence. Based on his alleged efforts to contact his trial counsel about an appeal, the court does not question the defendant's reasonable and good faith reliance on his counsel. The government does not articulate any prejudice from this delay. On this record, the court finds that there is excusable neglect as to justify extending the time to file a notice of appeal in this proceeding for a period of thirty days pursuant to Fed.R.App.P. 4(b)(4).

IT IS THEREFORE ORDERED that based on the above finding of excusable neglect the time for filing a notice of appeal is extended by thirty days;

IT IS FURTHER ORDERED that the clerk of the district court shall supplement the preliminary appellate record by transmitting to the Tenth Circuit copies of all documents filed and this order entered as a result of the partial remand.