United States v. Cotton

W.D. Virginia

United States v. Cotton

420 F. Supp. 2d 492, 2004 U.S. Dist. LEXIS 29874, 2004 WL 3735506

CourtDistrict Court, W.D. Virginia

DecidedSeptember 7, 2004

DocketCRIM. 795CR00030

StatusPublished

This text of 420 F. Supp. 2d 492 (United States v. Cotton) is published on Counsel Stack Legal Research, covering District Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Cotton, 420 F. Supp. 2d 492, 2004 U.S. Dist. LEXIS 29874, 2004 WL 3735506 (W.D. Va. 2004).

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Opinion

ORDER

KISER, Senior District Judge.

The United States Court of Appeals for the Fourth Circuit remanded this case for the sole purpose of determining whether the defendant’s untimely notice of appeal should be deemed timely due to “excusable neglect,” pursuant to Fed. RApp. P. 4(b)(4). Since the remand, the defendant, Charles Cotton, has submitted a letter, dated August 20, 2004, purporting to explain why his appeal should proceed. Upon review of this record, I find no “excusable neglect” under Rule 4(b)(4).

In his August 20, 2004, letter, Cotton traces the sequence of relevant events. On February 3, 2004, the court entered an opinion and order denying Cotton’s motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c). On February 11, 2004, *493 Cotton filed a “Request for Clarification or Motion for Reconsideration.” When the February 11 motion was still pending, Cotton filed his notice of appeal on March 8, 2004, outside the ten-day period mandated under Rule 4(b)(1)(A).

Cotton apparently argues that his appeal should be deemed timely because the court did not rule on the motion for reconsideration- before processing the notice of appeal. Cotton offers no other reason for failing to file the notice of appeal within the ten-day period. Thus, I cannot find that he has shown excusable neglect as required under Rule 4(b)(4).

Cotton’s pending, post-judgment motion for reconsideration, and an earlier motion submitted on February 5, 2004, must be denied. Cotton does not demonstrate that I committed any error in denying his motion under § 3582. He simply has not demonstrated any of the circumstances required for him to qualify for a sentence reduction under this section. Cotton also argues that I should construe and consider the claims in his § 3582 motion as a successive motion to vacate, set aside or correct sentence, pursuant to 28 U.S.C. § 2255. As Cotton has already pursued one § 2255 motion challenging this conviction (Civil Action No. 7:97-cv-00533), I cannot consider a second or successive § 2255 motion from him unless he first obtains certification from the Fourth Circuit to file such a petition. Cotton offers no indication that he has obtained such certification.

Based on the foregoing, it is hereby

ORDERED

as follows:

1. Pursuant to the remand order from the United States Court of Appeals for the Fourth Circuit, the court cannot find that the defendant has shown “excusable neglect” for failing to file his notice of appeal within the applicable time period under Fed. R.App. P. 4(b)(4); and

2. The defendant’s motions for reconsideration (Documents 144 and 145 on the court’s docket shall be and hereby are DENIED).

The Clerk is directed to send certified copies of this order to the defendant and to counsel of record for the government.

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ORDER

KISER, Senior District Judge.

The United States Court of Appeals for the Fourth Circuit remanded this case for the sole purpose of determining whether the defendant’s untimely notice of appeal should be deemed timely due to “excusable neglect,” pursuant to Fed. RApp. P. 4(b)(4). Since the remand, the defendant, Charles Cotton, has submitted a letter, dated August 20, 2004, purporting to explain why his appeal should proceed. Upon review of this record, I find no “excusable neglect” under Rule 4(b)(4).

In his August 20, 2004, letter, Cotton traces the sequence of relevant events. On February 3, 2004, the court entered an opinion and order denying Cotton’s motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c). On February 11, 2004, *493 Cotton filed a “Request for Clarification or Motion for Reconsideration.” When the February 11 motion was still pending, Cotton filed his notice of appeal on March 8, 2004, outside the ten-day period mandated under Rule 4(b)(1)(A).

Cotton apparently argues that his appeal should be deemed timely because the court did not rule on the motion for reconsideration- before processing the notice of appeal. Cotton offers no other reason for failing to file the notice of appeal within the ten-day period. Thus, I cannot find that he has shown excusable neglect as required under Rule 4(b)(4).

Cotton’s pending, post-judgment motion for reconsideration, and an earlier motion submitted on February 5, 2004, must be denied. Cotton does not demonstrate that I committed any error in denying his motion under § 3582. He simply has not demonstrated any of the circumstances required for him to qualify for a sentence reduction under this section. Cotton also argues that I should construe and consider the claims in his § 3582 motion as a successive motion to vacate, set aside or correct sentence, pursuant to 28 U.S.C. § 2255. As Cotton has already pursued one § 2255 motion challenging this conviction (Civil Action No. 7:97-cv-00533), I cannot consider a second or successive § 2255 motion from him unless he first obtains certification from the Fourth Circuit to file such a petition. Cotton offers no indication that he has obtained such certification.

Based on the foregoing, it is hereby

ORDERED

as follows:

1. Pursuant to the remand order from the United States Court of Appeals for the Fourth Circuit, the court cannot find that the defendant has shown “excusable neglect” for failing to file his notice of appeal within the applicable time period under Fed. R.App. P. 4(b)(4); and

2. The defendant’s motions for reconsideration (Documents 144 and 145 on the court’s docket shall be and hereby are DENIED).

The Clerk is directed to send certified copies of this order to the defendant and to counsel of record for the government.

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Bluebook (online)

420 F. Supp. 2d 492, 2004 U.S. Dist. LEXIS 29874, 2004 WL 3735506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cotton-vawd-2004.

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