United States v. Christopher Strohm , 39 F.3d 1185 ( 1994 )

39 F.3d 1185

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.
UNITED STATES of America, Appellee,
v.
Christopher STROHM, Appellant.

No. 94-1246.

United States Court of Appeals,
Eighth Circuit.

Submitted: Oct. 12, 1994.
Filed: Nov. 2, 1994.

Before MAGILL, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM.

1

Christopher Strohm appeals the district court's1 denial of his motion for an extension of time to file an appeal. We affirm.

2

Strohm pleaded guilty to one count of distributing LSD. The district court sentenced him on November 10, 1993, and entered the judgment on December 1. On January 3, 1994, Strohm moved through counsel for an extension of time to file his notice of appeal. The motion stated that Strohm had advised counsel by telephone on December 14 that he wanted to appeal his sentence. On January 10, the district court denied the motion, "[t]here being no showing of excusable neglect."

3

A criminal defendant must "file the notice of appeal in the district court within 10 days after the entry ... of the judgment." Fed. R. App. P. 4(b). Only "[u]pon a showing of excusable neglect" may the district court "extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed." Id.; see also United States v. Anna, 843 F.2d 1146, 1147 (8th Cir. 1988). Strohm's motion for extension did not allege facts amounting to excusable neglect. Therefore, the district court did not abuse its discretion in denying the motion. See United States v. Wade, 467 F.2d 1226, 1228 (1972) (standard of review for finding on excusable neglect), cert. denied, 410 U.S. 993 (1973).

4

We decline to consider Strohm's new allegations regarding the timing of his appeal request to counsel, but note that they are of a nature more properly pursued in a motion under 28 U.S.C. Sec. 2255. We grant counsel's motion to withdraw and deny Strohm's motion for appointment of new counsel.

5

Accordingly, we affirm the judgment of the district court.

1

The Honorable Edward L. Filippine, Chief Judge, United States District Court for the Eastern District of Missouri