United States v. Singletary , 88 F. App'x 652 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7803
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EDWARD DEVON SINGLETARY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-00-314; CA-03-240-1)
Submitted: February 6, 2004 Decided: February 27, 2004
Before WIDENER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Remanded by unpublished per curiam opinion.
Edward Devon Singletary, Appellant Pro Se. Robert Albert Jamison
Lang, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Edward Devon Singletary seeks to appeal the district
court’s order denying his motion filed pursuant to 28 U.S.C. § 2255(2000). In civil actions in which the United States or an officer
or agency thereof is a party, all parties are accorded sixty days
after the entry of the district court’s final judgment or order to
note an appeal, see Fed. R. App. P. 4(a)(1)(B), unless the district
court extends the appeal period under Fed. R. App. P. 4(a)(5), or
reopens the appeal period under Fed. R. App. P. 4(a)(6). These
time periods are “mandatory and jurisdictional.” Browder v. Dir.,
Dep’t of Corr., 434 U.S. 257, 264 (1978) (quoting United States v.
Robinson, 361 U.S. 220, 229 (1960)).
The district court’s order was entered on the docket on
July 29, 2003. Singletary signed his notice of appeal on
October 27, 2003, the envelope was postmarked on November 3, 2003,
and the notice was filed in the district court on November 6, 2003.
Singletary stated in his notice of appeal that he did not receive
notice of the district court’s denial of his § 2255 motion until
October 15, 2003. We construe Singletary’s statement as a motion
to extend the appeal period under Fed. R. App. P. 4(a)(5).* See
Washington v. Bumgarner, 882 F.2d 899, 901 (4th Cir. 1989);
Myers v. Stephenson, 781 F.2d 1036, 1038-39 (4th Cir. 1986).
*
Singletary may not benefit from Rule 4(a)(6) because he dated
his notice of appeal more than seven days after he received notice
of the district court’s judgment.
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So construed, the motion for an extension of time was
received in the district court shortly after expiration of the
period provided in Rule 4(a)(5). Under Fed. R. App. P. 4(c)(1) and
Houston v. Lack, 487 U.S. 266 (1988), the notice is considered
filed as of the date Singletary properly delivered it to prison
officials for mailing to the court. The record does not reveal if
or when Singletary complied with the requirements of Fed. R. App.
P. 4(c)(1).
Accordingly, we remand the case for the district court to
obtain this information from the parties and to determine whether
the motion for an extension of time was timely under Rule 4(c)(1)
and Houston v. Lack. If the district court determines that the
motion was timely filed, the court then should determine whether
Singletary has shown excusable neglect or good cause warranting an
extension of the appeal period pursuant to Rule 4(a)(5). We
express no opinion regarding the timeliness of the motion or
whether Singletary has made the requisite showing under Rule
4(a)(5). The record, as supplemented, will then be returned to
this court for further consideration.
REMANDED
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