Artavis Desmond v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 26, 2025
• Docket: 25-10939
• Status: Unpublished

Opinion

USCA11 Case: 25-10939 Document: 14-1 Date Filed: 06/26/2025 Page: 1 of 3

In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 25-10939 ____________________

ARTAVIS MCGOWAN DESMOND, Petitioner-Appellant, versus UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 2:22-cv-08022-RDP ____________________

Before JORDAN and JILL PRYOR, Circuit Judges. USCA11 Case: 25-10939 Document: 14-1 Date Filed: 06/26/2025 Page: 2 of 3

2 Order of the Court 25-10939

BY THE COURT: This appeal is REMANDED, sua sponte, to the district court for the limited purpose of determining whether to reopen the ap- peal period under Federal Rule of Appellate Procedure 4(a)(6). Artavis Desmond’s pro se notice of appeal seeks to challenge the district court’s December 12, 2024 memorandum opinion and separate final order denying his motion to vacate under 28 U.S.C. § 2255. To timely seek review of the district court’s December 12, 2024 order, Desmond had to file a notice of appeal by February 10, 2025. See 28 U.S.C. § 2107(b) (providing that a notice of appeal must be filed within 60 days after the judgment or order appealed from is entered where the United States is a party); Fed. R. App. P. 4(a)(1)(B) (same). Although Desmond did not date his notice of appeal, he stated in it that he did not learn of the court’s final order until the government mentioned it in a filing it certified it sent to him on February 20, 2025. Accordingly, Desmond’s notice of appeal is untimely. See Green v. Drug Enf’t Admin., 606 F.3d 1296, 1300 (11th Cir. 2010) (providing that in a civil case, a timely notice of appeal is a jurisdic- tional requirement); Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014) (providing that a pro se prisoner’s notice of appeal and other court filings are deemed filed on the date he delivers them to prison authorities for mailing); Fed. R. App. P. 4(c)(1) (providing that, to take advantage of the prison mailbox rule, the prisoner must use the institution’s system designed for legal mail). Nonetheless, because Desmond’s notice of appeal asserts that he USCA11 Case: 25-10939 Document: 14-1 Date Filed: 06/26/2025 Page: 3 of 3

25-10939 Order of the Court 3

did not receive a copy of the district court’s December 12, 2024 or- der, there is a question as to whether Desmond merits reopening of the appeal period under Rule 4(a)(6). See Fed. R. App. P. 4(a)(6) (providing circumstances under which the district court may reo- pen the time to appeal); Sanders v. United States, 113 F.3d 184, 186-87 (11th Cir. 1997) (holding that when a pro se appellant alleges that he did not receive notice of entry of the judgment or order appealed from within 21 days of its entry, we will construe the notice of ap- peal as a Rule 4(a)(6) motion to reopen the appeal period and re- mand to the district court to determine whether reopening the time to appeal is warranted). Accordingly, we construe Desmond’s notice of appeal as a motion for relief under Rule 4(a)(6) and remand to the district court for the limited purpose of determining whether such relief is war- ranted. Upon making its determinations, the district court shall re- turn the case, as supplemented, to us for further proceedings.