Garrett v. United States

Eleventh Circuit

Garrett v. United States

683 F. App'x 812

CourtCourt of Appeals for the Eleventh Circuit

DecidedMarch 27, 2017

DocketNo. 16-16709-A

StatusPublished

This text of 683 F. App'x 812 (Garrett v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Garrett v. United States, 683 F. App'x 812 (11th Cir. 2017).

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Opinion

BY THE COURT:

This appeal is ALLOWED TO PROCEED.

Petitioner-Appellant Jamaal John Thomas Garrett appeals from the district court’s August 9, 2016 judgment denying his motion to vacate his sentence, pursuant to 28 U.S.C. § 2255. Mr. Garrett’s notice of appeal, which he did not date but which was mailed to the district court on October 17, 2016, was untimely on its face to appeal from the district court’s judgment See Fed. R. App. P. 4(a)(1)(B) & (c)(1). However, Mr. Garrett suggested in his notice of appeal that he did not receive any notice about his case from the district court until September 15, which was more than 21 days after judgment was entered. We therefore remanded this case to the dis-. trict court, for the limited purpose of determining whether Mr. Garrett filed his notice of appeal within 14 days of receiving [813]*813notice of the judgment, such that he might be eligible for a reopening of his time to appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6). See Fed R. App. P. 4(a)(6); Sanders v. United States, 113 F.3d 184, 186-87 (11th Cir. 1997).

On remand, the court found that Mr. Garrett received notice of the judgment on September 15, and that he placed his notice of appeal in the prison mailing system on October 9. It is true that this interval was more than 14 days, and that Mr. Garrett is therefore not eligible for a reopening of his time to appeal under Rule 4(a)(6). See Fed. R. App. P. 4(a)(6). However, if Mr. Garrett deposited his notice of appeal in the prison mailing system on October 9, then his appeal was timely from the district court’s August 9 judgment, without any need to reopen the appeal period. See Fed. R. App. P. 4(a)(1)(B) & (c); United States v. Glover, 686 F.3d 1203, 1205 (11th Cir. 2012). Accordingly, based upon the district court’s findings on limited remand, this appeal is timely, and we have jurisdiction to consider it. The appeal may therefore proceed.

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BY THE COURT:

This appeal is ALLOWED TO PROCEED.

Petitioner-Appellant Jamaal John Thomas Garrett appeals from the district court’s August 9, 2016 judgment denying his motion to vacate his sentence, pursuant to 28 U.S.C. § 2255. Mr. Garrett’s notice of appeal, which he did not date but which was mailed to the district court on October 17, 2016, was untimely on its face to appeal from the district court’s judgment See Fed. R. App. P. 4(a)(1)(B) & (c)(1). However, Mr. Garrett suggested in his notice of appeal that he did not receive any notice about his case from the district court until September 15, which was more than 21 days after judgment was entered. We therefore remanded this case to the dis-. trict court, for the limited purpose of determining whether Mr. Garrett filed his notice of appeal within 14 days of receiving [813]*813notice of the judgment, such that he might be eligible for a reopening of his time to appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6). See Fed R. App. P. 4(a)(6); Sanders v. United States, 113 F.3d 184, 186-87 (11th Cir. 1997).

On remand, the court found that Mr. Garrett received notice of the judgment on September 15, and that he placed his notice of appeal in the prison mailing system on October 9. It is true that this interval was more than 14 days, and that Mr. Garrett is therefore not eligible for a reopening of his time to appeal under Rule 4(a)(6). See Fed. R. App. P. 4(a)(6). However, if Mr. Garrett deposited his notice of appeal in the prison mailing system on October 9, then his appeal was timely from the district court’s August 9 judgment, without any need to reopen the appeal period. See Fed. R. App. P. 4(a)(1)(B) & (c); United States v. Glover, 686 F.3d 1203, 1205 (11th Cir. 2012). Accordingly, based upon the district court’s findings on limited remand, this appeal is timely, and we have jurisdiction to consider it. The appeal may therefore proceed.

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683 F. App'x 812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrett-v-united-states-ca11-2017.

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