U.S. v. Perez

Full title: UNITED STATES OF AMERICA, v. FABIAN EMILIO PEREZ

Court: United States District Court, N.D. Texas, Dallas Division

Date published: Feb 16, 2005

No. 3:03-CR-424-M (02) (N.D. Tex. Feb. 16, 2005)

Opinion

No. 3:03-CR-424-M (02).

February 16, 2005

PAUL STICKNEY, Magistrate Judge

FINDINGS AND RECOMMENDATION

On January 14, 2005, the District Court referred to the United States Magistrate Judge for findings and recommendation the issue of whether the untimely filing of Defendant's notice of appeal was due to excusable neglect or was for good cause. Defendant filed a "Motion to Allow Late Notice of Appeal," setting forth his reasons for the late filing.

Analysis

Judgment was entered on September 2, 2004. Defendant had ten days following entry of the judgment in which to file a notice of appeal from the judgment. FED. R. APP. P. 4(b)(A)(1).¹ The final day for filing a timely notice of appeal was September 17, 2004. See FED. R. APP. P. 26(a)(2). A timely motion to proceed in forma pauperis ("IFP") on appeal may be considered the substantial equivalent of a notice of appeal and is effective to invoke appellate jurisdiction. See, e.g., Robbins v. Maggio, 750 F.2d 405, 408-09 (5th Cir. 1985).² Defendant filed a motion for leave to appeal in forma pauperis on September 24, 2004. The motion itself is not dated, and the Court does not know when it was mailed. However, it is not probable that it was placed in the prison mail on September 17, 2004, and that the mail took seven days to reach the Clerk of Court.³ Moreover, Defendant has presented no evidence to this effect. Accordingly, the Court finds the in forma pauperis motion is the equivalent of a notice of appeal and, allowing three days for mailing, deems it filed on September 21, 2004.

1 The terms of FED. R. APP. P. 4(b)(A) provide:

In a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after the later of:

(i) the entry of either the judgment or the order being appealed; or

(ii) the filing of the government's notice of appeal.

2 To qualify as the equivalent of a notice of appeal, a "document should accomplish the dual objectives of (1) notifying the court and (2) notifying opposing counsel of the taking of an appeal." Van Wyk El Paso Investment, Inc. v. Dollar Rent-a-Car Systems, 719 F.2d 806, 807 (5th Cir. 1983). Defendant's motion to proceed in forma pauperis satisfied these goals.

3 A notice of appeal is filed at the time a prisoner delivers it to the prison authorities for forwarding to the court clerk. See Houston v. Lack, 487 U.S. 266, 276 (1988).

Upon a finding of excusable neglect or good cause, the district court may — before or after the time has expired, with or without motion and notice — 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 Rule 4(b). FED. R. APP. P. 4(b)(4). When a notice of appeal is filed untimely in a criminal case, but within the period prescribed by Fed.R.App.P. 4(b)(4), a court may treat it as a motion for a determination with respect to whether good cause exists for the late filing. United States v. Golding, 739 F.2d 183, 184 (5th Cir. 1984).

The Fifth Circuit Court of Appeals remanded this case to the District Court for a determination whether the untimely filing of the notice of appeal was due to excusable neglect or was for good cause. The District Court referred that issue to this Court for Findings and Recommendation. This Court ordered Defendant to show good cause or excusable neglect. Defendant filed a "Motion to Allow Late Notice of Appeal" on February 7, 2005. The Court must consider "the danger of prejudice to the [United States], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of [Defendant], and whether [Defendant] acted in good faith." Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 395 (1993).⁴

4 Pioneer controls determinations of excusable neglect under Rule 4(b). United States v. Clark, 51 F.3d 42, 43-44 (5th Cir. 1995).

Defendant, who was proceeding without counsel while the time to appeal was running, alleges that he was ignorant of his appeal rights and of appellate procedure. Defendant mistakenly filed a "Motion to Reduce Sentence under Fed.R. Cr. P. 35(b)" during the critical time period. He also requested a print-out of his prison account balance for inclusion with his motion to proceed IFP. Although the record does not show when it was requested, the print-out shows that it was provided September 13, 2004. Defendant also mistakenly filed his IFP motion in the circuit court, and it was returned to him. Defendant's motion to proceed IFP, which this Court has construed as a notice of appeal, was filed four days after the ten-day deadline. The Court concludes that Defendant was acting diligently and in good faith in attempting to perfect an appeal without counsel.

The Court notes that Defendant's retained counsel did not protect Defendant's right to appeal,⁵ and he did not file a motion for leave to withdraw as counsel. The Court appointed appellate counsel to represent Defendant on appeal on November 15, 2004, after the appeal-time had lapsed. Defendant's retained counsel was terminated on the record on that same date.

5 In his plea agreement, Defendant, in part, waived his right to appeal. However, the waiver included four exceptions.

An appeal from a district court's judgment of conviction in a criminal case is a matter of right. Coppedge v. United States, 369 U.S. 438, 441 (1962); Arrastia v. United States, 455 F.2d 736, 739 (5th Cir. 1972); Brewen v. United States, 375 F.2d 285, 286 (5th Cir. 1967). Additionally, an indigent defendant has a right to counsel on appeal. Brewen, 375 F.2d at 286. If privately-retained counsel continues to represent his client until the appeal stage of the proceedings arrives, "he can't be permitted simply to bow out without notice either to the court or client and frustrate forever the right of the client to protect his vital interests." Atilus v. United States, 406 F.2d 694, 696 (5th Cir. 1969).

The Court finds that the record demonstrates that Defendant's late filing was a result of excusable neglect. The lapse in time was short, and the Government will not be prejudiced. The facts that (1) Defendant's retained counsel failed to protect his right to appeal while he was still counsel of record for Defendant and (2) counsel was not appointed under the Criminal Justice Act to represent Defendant on appeal until the appeal-time had lapsed are good causes for granting an additional thirty days in which to file an appeal in this case. The equities weigh in favor of allowing the appeal to proceed.

RECOMMENDATION

The Court recommends that the District Court grant Defendant's Motion for Leave to File Late Notice of Appeal and that leave to proceed with his appeal pursuant to the excusable neglect exception under FED. R. APP. P. 4(b)(4) be granted.