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United States District Court, S.D. Alabama, Southern DivisionMar 14, 2011
CRIMINAL NO. 04-0239-WS. (S.D. Ala. Mar. 14, 2011)

CRIMINAL NO. 04-0239-WS.

March 14, 2011


This matter comes before the Court on defendant/petitioner Bernard Jones' Motion for Out of Time Appeal (doc. 58). The Motion was received by the Clerk's Office of March 11, 2011, but is deemed filed on March 8, 2011 because that is when Jones (an Alabama state prisoner) tendered his Motion, properly addressed and with postage prepaid, to prison authorities for mailing.

On November 24, 2010, the undersigned entered an endorsed order (doc. 53) denying Jones' motion for reduction of sentence. When Jones filed a Motion for Status (doc. 54) two months later, the undersigned entered another endorsed order (doc. 55) on February 1, 2011 advising him that his motion for sentence reduction had been denied. Several weeks later, Jones filed a "Motion to Compel Judge" (doc. 56), seeking to expedite ruling on his motion for reduction in sentence, even though such motion had already been denied some three months earlier. On February 23, 2011, the Court entered an Order (doc. 57) deeming the "Motion to Compel Judge" moot on that basis. Jones now requests an out-of-time appeal of the November 24 Order denying his motion for reduction of sentence, for the stated reason that he never received notice of that ruling until he was served with a copy of the February 23 Order on February 25, 2011.

"In a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days after" entry of the order from which appeal is taken. Rule 4(b)(1)(A)(i), Fed.R.App.P. Jones unquestionably failed to meet this deadline. Nonetheless, upon a finding that failure to appeal in a timely manner resulted from "excusable neglect or good cause," the district court may authorize an extension, but only "for a period not to exceed 30 days from the expiration of time otherwise prescribed by this Rule 4(b)." Rule 4(b)(4), Fed.R.App.P.; see also United States v. Grant, 256 F.3d 1146, 1150-51 (11th Cir. 2001) ("Grant's second notice of appeal, however, was filed . . . more than 30 days late and therefore does not fall within the Rule 4(b)(4) window."). Under this rule, then, this Court is authorized to extend the deadline for Jones' appeal to no more than 44 days from the date of entry of the order from which appeal is taken ( i.e., the 14 days allowed by Rule 4(b)(1)(A)(i), plus the 30 days authorized by Rule 4(b)(4)). Jones did not appeal within 44 days after entry of the November 24 Order; but rather seeks leave to file an out-of-time appeal now, more than 100 days after entry of the order from which appeal is taken. The Federal Rules of Appellate Procedure do not confer upon this District Court authority to grant such an extension to him.

To the extent that Jones would argue that an additional extension is warranted because he did not timely receive notice of the November 24 Order, such an argument is unavailing. After all, except for the 30-day extension period authorized for good cause under Rule 4(b), "the clerk's failure to give notice does not affect the time to appeal, or relieve — or authorize the court to relieve — a party's failure to appeal within the allowed time." Rule 49(c), Fed.R.Crim.P. (emphasis added); see also Sanders v. United States, 113 F.3d 184, 186 (11th Cir. 1997) ("lack of notice of entry of an order does not excuse the failure to file a timely notice of appeal").

Simply put, "a district court may not extend the time for filing a notice of appeal more than 30 days beyond Rule 4(b)'s 10-day window." United States v. Millsap, 2008 WL 5381430, *1 (11th Cir. Dec. 23, 2008). That is precisely the relief sought by Jones at this time. Accordingly, the Motion for Out of Time Appeal (doc. 58) is denied.

DONE and ORDERED this 14th day of March, 2011.