Summary
In United States v. Buntin, 10 F. 730, a teacher, in reliance on a State statute, refused admittance to a colored child, while in United States v. Stone, 188 F. 836, election supervisors who acted under a Maryland election law were held to act "under color of law."
Summary of this case from Screws v. United StatesOpinion
CASE NO 98-248-CR-SEITZ.
September 15, 2008
ORDER GRANTING MOTION TO FILE LATE NOTICE OF APPEAL
THIS MATTER is before the Court on Defendant Buntin's Request to File Late Notice of Appeal [DE 47]. On May 16, 2008, the Court entered an Order Denying Motion for Clarification [DE 42]. The docket does not reflect that Defendant received a copy of that order. Attached to Defendant's Request is a copy of an envelope from the U.S. District Court to Defendant postmarked August 5, 2008. Although there is no letter in the docket from Defendant requesting the status of his Motion for Clarification (such letters are not typically filed in the record), it would appear that the Clerk's Office did mail something to the Defendant on August 5, 2008. Nine days later, on August 14, 2008, as evidenced by the postmark on the envelope received with the Notice, the Defendant mailed his request to file a late Notice of Appeal.
Pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure, the District Court may reopen the time to file an appeal for a period of 14 days if the Court finds that the moving party did not receive notice of the entry of the order from which appeal is taken within 21 days of its entry. Under Rule 4(a)(6) the party seeking leave to file an appeal must do so within 180 days after the order was entered or within 7 days after the moving party receives notice of the entry of the order. Upon review of the record, Defendant's motion has been timely filed. Furthermore, no party will be prejudiced if the Defendant is permitted to file his appeal.
Accordingly, it is hereby
ORDERED that Defendant Buntin's Request to File Late Notice of Appeal [DE 47] is GRANTED. Pursuant to Rule 4(a)(6) of the Federal Rules if Appellate Procedure, Defendant must file his Notice of Appeal within 14 days of the date of this order.
DONE AND ORDERED in Miami, Florida.