United States v. Graham

Fourth Circuit

United States v. Graham

180 F. App'x 429

CourtCourt of Appeals for the Fourth Circuit

DecidedMay 15, 2006

Docket05-7836

StatusUnpublished

This text of 180 F. App'x 429 (United States v. Graham) 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.

Bluebook

United States v. Graham, 180 F. App'x 429 (4th Cir. 2006).

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Opinion

PER CURIAM:

Timothy Graham seeks to appeal the district court’s orders dismissing his 28 U.S.C. § 2255 (2000) motion, entered April 20, 2005, and denying his Fed.R.Civ.P. 59(e) motion, entered May 12, 2005. According Graham the benefit of Fed. R.App. P. 4(c) and Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the earliest date his notice of appeal may be deemed filed is November 15, 2005, beyond both the sixty-day appeal period under Fed. R.App. P. 4(a)(1)(B), and the thirty-day excusable neglect period allowed under Fed. R.App. P. 4(a)(5). See Shah v. Hutto, 722 F.2d 1167, 1168 (4th Cir.1983); see also Fed. R.App. P. 4(a)(4)(A) (providing that if a party timely files a Rule 59(e) motion, the time to file an appeal runs from the entry of the order disposing of that motion).

We construe Graham’s notice of appeal, which alleges that he did not timely receive notice of the denial of his Rule 59(e) motion, as a motion to reopen the time to note an appeal under Fed. R.App. P. 4(a)(6). United States v. Feuver, 236 F.3d 725, 729 & n. 7 (D.C.Cir.2001). Accordingly, we remand the case to the district court for the limited purpose of permitting that court to determine whether Graham can satisfy the requirements for reopening the appeal period set forth in Fed. R.App. P. 4(a)(6). See Ogden v. San Juan County, 32 F.3d 452, 454 (10th Cir.1994). The record, as supplemented, will then be returned to this court for further consideration.

REMANDED

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PER CURIAM:

Timothy Graham seeks to appeal the district court’s orders dismissing his 28 U.S.C. § 2255 (2000) motion, entered April 20, 2005, and denying his Fed.R.Civ.P. 59(e) motion, entered May 12, 2005. According Graham the benefit of Fed. R.App. P. 4(c) and Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the earliest date his notice of appeal may be deemed filed is November 15, 2005, beyond both the sixty-day appeal period under Fed. R.App. P. 4(a)(1)(B), and the thirty-day excusable neglect period allowed under Fed. R.App. P. 4(a)(5). See Shah v. Hutto, 722 F.2d 1167, 1168 (4th Cir.1983); see also Fed. R.App. P. 4(a)(4)(A) (providing that if a party timely files a Rule 59(e) motion, the time to file an appeal runs from the entry of the order disposing of that motion).

We construe Graham’s notice of appeal, which alleges that he did not timely receive notice of the denial of his Rule 59(e) motion, as a motion to reopen the time to note an appeal under Fed. R.App. P. 4(a)(6). United States v. Feuver, 236 F.3d 725, 729 & n. 7 (D.C.Cir.2001). Accordingly, we remand the case to the district court for the limited purpose of permitting that court to determine whether Graham can satisfy the requirements for reopening the appeal period set forth in Fed. R.App. P. 4(a)(6). See Ogden v. San Juan County, 32 F.3d 452, 454 (10th Cir.1994). The record, as supplemented, will then be returned to this court for further consideration.

REMANDED

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Bluebook (online)

180 F. App'x 429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-graham-ca4-2006.

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