United States v. Hawkins ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4336
MARK HAWKINS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
G. Ross Anderson, Jr., District Judge.
(CR-95-134)
Submitted: January 30, 1998
Decided: February 23, 1998
Before MURNAGHAN, HAMILTON, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
William H. Ehlies, Greenville, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Harold W. Gowdy, III, Assistant
United States Attorney, Greenville, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Mark Hawkins appeals from a district court order denying his
motion for an extension of time to appeal from the district court's
underlying criminal judgment order entered against Hawkins on
December 19, 1995. He claims that he asked his court-appointed
attorney to appeal but that his attorney did not do so.
Under Federal Rule of Appellate Procedure 4(b), Hawkins had ten
days to appeal from the criminal judgment. The same rule authorized
the district court to extend the appeal period by no more than 30 days
based upon a showing of excusable neglect. The rule does not, how-
ever, permit a district court to note an appeal more than 40 days after
the judgment. See United States v. Raynor, 939 F.2d 191, 197 (4th
Cir. 1991).
In this case, the 40-day period expired on January 29, 1996. Haw-
kins did not file his motion until April 4, 1997. Hence, the district
court properly found that it lacked authority to grant the motion, and
Hawkins concedes this in his appellate brief. This court does not
reach claims of ineffective assistance on direct appeal unless the
record conclusively demonstrates counsel's ineffectiveness, United
States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991), which is not
the case here. Therefore any such claim must be raised in a motion
under 28 U.S.C. § 2255.
Accordingly, the order of the district court is affirmed. In view of
our disposition, we deny Hawkins' motion for an extension of time
to appeal. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED
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