United States v. Concessi

Fourth Circuit

United States v. Concessi

110 F. App'x 313

CourtCourt of Appeals for the Fourth Circuit

DecidedSeptember 23, 2004

Docket04-6102

StatusUnpublished

This text of 110 F. App'x 313 (United States v. Concessi) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth 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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United States v. Concessi, 110 F. App'x 313 (4th Cir. 2004).

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Opinion

PER CURIAM.

Michael J. Concessi seeks to appeal the district court’s denial of his 28 U.S.C. § 2255 (2000) motion. In civil actions in which the United States or an officer or agency thereof is a party, all parties are accorded sixty days after entry of the district court’s final judgment or order to note an appeal, see Fed. RApp. P. 4(a)(1)(B), unless the district court extends the appeal period under Fed. R.App. P. 4(a)(5) or reopens the appeal period under Fed. R.App. P. 4(a)(6). These time periods “are mandatory and jurisdictional.” Browder v. Director, Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (I960)).

The district court’s order denying Concessi’s motion was entered on October 30, 2003. Concessi’s notice of appeal was dated December 30, 2003, one day outside the sixty-day appeal period. 1 Along with his notice of appeal, Concessi submitted a letter that appears to argue that he had good cause for his late filing. We construe Concessi’s letter as a motion to extend the appeal period under Rule 4(a)(5). See Washington v. Bumgarner, 882 F.2d 899, 901 (4th Cir.1989); Myers v. Stephenson, 781 F.2d 1036, 1038-39 (4th Cir.1986). Accordingly, we remand the case to the district court to determine whether Concessi *315 has shown excusable neglect or good cause to warrant an extension of the appeal period. 2 The record, as supplemented, will then be returned to this court for further consideration.

REMANDED

1

. Because Concessi was in prison, we construe the date he executed his notice of appeal as the earliest date on which it can be considered filed. See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); Fed. R.App. P. 4(c).

2

. We express no opinion whether Concessi has made the requisite showing under Rule 4(a)(5).

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PER CURIAM.

Michael J. Concessi seeks to appeal the district court’s denial of his 28 U.S.C. § 2255 (2000) motion. In civil actions in which the United States or an officer or agency thereof is a party, all parties are accorded sixty days after entry of the district court’s final judgment or order to note an appeal, see Fed. RApp. P. 4(a)(1)(B), unless the district court extends the appeal period under Fed. R.App. P. 4(a)(5) or reopens the appeal period under Fed. R.App. P. 4(a)(6). These time periods “are mandatory and jurisdictional.” Browder v. Director, Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (I960)).

The district court’s order denying Concessi’s motion was entered on October 30, 2003. Concessi’s notice of appeal was dated December 30, 2003, one day outside the sixty-day appeal period. 1 Along with his notice of appeal, Concessi submitted a letter that appears to argue that he had good cause for his late filing. We construe Concessi’s letter as a motion to extend the appeal period under Rule 4(a)(5). See Washington v. Bumgarner, 882 F.2d 899, 901 (4th Cir.1989); Myers v. Stephenson, 781 F.2d 1036, 1038-39 (4th Cir.1986). Accordingly, we remand the case to the district court to determine whether Concessi *315 has shown excusable neglect or good cause to warrant an extension of the appeal period. 2 The record, as supplemented, will then be returned to this court for further consideration.

REMANDED

1

. Because Concessi was in prison, we construe the date he executed his notice of appeal as the earliest date on which it can be considered filed. See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); Fed. R.App. P. 4(c).

2

. We express no opinion whether Concessi has made the requisite showing under Rule 4(a)(5).

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