United States v. Myers

274 F. App'x 240

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 17, 2008
• Docket: 07-6569
• Status: Unpublished

Opinion

PER CURIAM:

Clinton Deshannon Myers seeks to appeal the district court’s order denying his motions to reopen the time to file a notice of appeal from his criminal judgment and for production of transcripts. We remanded the case to the district court for the limited purpose of determining whether Myers had shown excusable neglect or good cause to warrant an extension of time to file a notice of appeal. Despite an order from the district court directing Myers to submit an affidavit explaining the reason he failed to file a notice of appeal within ten days of the motion he sought to appeal, Myers filed no explanation. The court found that he failed to demonstrate excusable neglect or good cause. See United States v. Myers, No. 7:05-cr-00096-jct (W.D.Va. Mar. 9, 2007). We therefore dismiss the appeal as untimely.

In criminal cases, the defendant must file the notice of appeal within ten days after the entry of judgment. Fed. R.App. P. 4(b)(1)(A). With or without a motion, upon a showing of excusable neglect or good cause, the district court may grant an extension of up to thirty days to file a notice of appeal. Fed. R.App. P. 4(b)(4); United States v. Reyes, 759 F.2d 351, 353 (4th Cir.1985).

The district court entered judgment on March 9, 2007. The notice of appeal was filed on April 11, 2007. * Because Myers failed to file a timely notice of appeal or to obtain an extension of the appeal period, we dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED.

* Myers did not date his notice of appeal, but it was postmarked April 11, 2007. For purposes of this appeal, we assume that the postmark date is the earliest date it could have been properly delivered to prison officials for mailing to the court. See Fed. R.App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct 2379, 101 L.Ed.2d 245 (1988).