United States v. Scott Smallwood

• Court: Court of Appeals for the Fourth Circuit
• Decided: December 20, 2022
• Docket: 22-6710
• Status: Unpublished

Opinion

USCA4 Appeal: 22-6710 Doc: 9 Filed: 12/20/2022 Pg: 1 of 2

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-6710

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SCOTT ALEXANDER SMALLWOOD,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah Lynn Boardman, District Judge. (8:10-cr-00334-DLB-1; 8:19-cv-02103-DLB)

Submitted: December 15, 2022 Decided: December 20, 2022

Before GREGORY, Chief Judge, and WILKINSON and DIAZ, Circuit Judges.

Remanded by unpublished per curiam opinion.

Scott Alexander Smallwood, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-6710 Doc: 9 Filed: 12/20/2022 Pg: 2 of 2

PER CURIAM:

Scott Alexander Smallwood seeks to appeal the district court’s order dismissing his

28 U.S.C. § 2255 motion as untimely. When the United States or its officer or agency is a

party in a civil case, parties are accorded 60 days after the entry of the district court’s final

judgment or order to note an appeal, Fed. R. App. 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). However, if a party moves for an extension of time to appeal

within 30 days after expiration of the original appeal period and demonstrates excusable

neglect or good cause, a district court may extend the time to file a notice of appeal. Fed.

R. App. P. 4(a)(5)(A); Washington v. Bumgarner, 882 F.2d 899, 900-01 (4th Cir. 1989).

The district court entered its order on March 11, 2022. Smallwood filed his notice

of appeal on May 24, 2022, after the expiration of the 60-day appeal period but within

the 30-day excusable neglect period. ∗ Because Smallwood’s notice of appeal contained

language requesting additional time to appeal, we construe it as a request for an extension

of time under Fed. R. App. P. 4(a)(5). Accordingly, we remand this case to the district

court for the limited purpose of determining whether Smallwood demonstrated good cause

or excusable neglect warranting an extension of the 60-day appeal period. The record, as

supplemented, will be returned to this court for further consideration.

REMANDED

∗ For the purpose of this appeal, we assume that the date appearing on the notice of appeal is the earliest date Smallwood could have delivered the notice to prison officials for mailing to the court. Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988).