United States v. Hadden , 73 F. App'x 574 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-6328
DONATHAN WAYNE HADDEN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron M. Currie, District Judge.
(CR-98-156)
Submitted: July 16, 2003
Decided: August 14, 2003
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
Petition denied by unpublished per curiam opinion.
COUNSEL
Donathan Wayne Hadden, Appellant Pro Se. Alfred William Walker
Bethea, Assistant United States Attorney, Florence, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HADDEN
OPINION
PER CURIAM:
Donathan Wayne Hadden was convicted in March 1999 of conspir-
acy to possess with intent to distribute and distribution of metham-
phetamine (Count I); attempted possession with intent to distribute
methamphetamine (Count II); and using and carrying a firearm during
and in relation to a drug trafficking crime (Count III). In November
2002, the district court granted relief pursuant to 28 U.S.C. § 2255(2000) as to Count III, and entered an amended criminal judgment
with respect to Counts I and II on November 22, 2002. Hadden filed
objections to the amended judgment on December 5, 2002. See Hous-
ton v. Lack, 487 U.S. 266, 276 (1988) (holding that motion is consid-
ered filed on the date it is deposited with prison officials for mailing).
The district court has not ruled on the objections to date.
On February 12, 2003, Hadden filed a notice of appeal to inform
this court of his "intent to pursue appellate review should the objec-
tion[s] be denied." Although Hadden’s appeal period ordinarily would
have expired on December 9, 2002, we find that the document filed
by Hadden in the district court raising objections to the amended
criminal judgment was essentially a motion for reconsideration. See
Fed. R. App. P. 4(b)(1)(A) (setting forth ten-day appeal period); Fed.
R. App. P. 26 (providing that "intermediate Saturdays, Sundays, and
legal holidays" are excluded when the time period is less than eleven
days). When a timely motion for reconsideration is filed in a criminal
case, the ten-day appeal period does not begin to run until after the
motion to reconsider has been decided by the district court. See
United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991); United States v.
Dieter, 429 U.S. 6, 7-8 (1976); United States v. Healy, 376 U.S. 75,
77-79 (1964); United States v. Christy, 3 F.3d 765, 767 n.1 (4th Cir.
1993). Accordingly, Hadden’s notice of appeal is premature.
Because Hadden clearly indicated on his notice of appeal that he
intended to pursue appellate review only "in the event that the objec-
tion[s] be denied," we construe his notice of appeal as a petition for
a writ of mandamus alleging that the district court has unduly delayed
acting on his pending objections. Mandamus, however, is a drastic
remedy to be used only in extraordinary circumstances. Kerr v.
UNITED STATES v. HADDEN 3
United States Dist. Court, 426 U.S. 394, 402 (1976). "Courts are
extremely reluctant to grant a writ of mandamus." In re: Beard, 811
F.2d 818, 827 (4th Cir. 1987). A petitioner seeking mandamus relief
carries the heavy burden of showing that he has no other adequate
means to attain the relief requested and that his right to such relief is
clear and indisputable. In re: First Fed. Sav. & Loan Ass’n, 860 F.2d
135, 138 (4th Cir. 1988).
Although unreasonable delay in the district court is reviewable by
mandamus, we find that mandamus relief is not warranted in this case
because the delay is not unreasonable. We therefore deny the manda-
mus petition without prejudice to the filing of another mandamus peti-
tion if the district court does not act expeditiously. 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.
PETITION DENIED