United States v. Van

35 F. App'x 689

Opinion

MEMORANDUM

Footnotes

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James Troy Van, after pleading guilty to drug offenses, filed an untimely pro se notice of appeal. We affirm the district court’s determination that no excusable neglect exists to permit an untimely notice of appeal. Accordingly, we dismiss the untimely appeal for lack of jurisdiction.

DISCUSSION

There is no dispute that Van’s pro se notice of appeal in No. 00-10333 is untimely and therefore does not vest jurisdiction in this court. See United States v. Vaccaro, 51 F.3d 189, 191 (9th Cir.1995) (“The timely filing of a notice of appeal is a jurisdictional requirement.”). An untimely notice may nonetheless be deemed effective “upon a finding of excusable neglect or good cause.” See Fed. R.App. Pro. 4(b)(4). Van appeals in No. 01-10075 the district court’s ruling that there is no excusable neglect that would permit his late filing in No. 00-10333. He argues there is excusable neglect because his trial attorney failed to advise him of his right to appeal and did not file an appeal when he requested one.

The district court found no excusable neglect because Van’s testimony was “implausible,” “inconsistent and evasive,” and “not credible.” Rather, the court credited Van’s attorney’s testimony that she counseled him regarding his appeal rights and that, notwithstanding evidence that Van called her after sentencing, he never requested that she file an appeal. We have no cause to question these credibility determinations. See United States v. Nelson, 137 F.3d 1094, 1110 (9th Cir.1998) (noting deference owed to trial court’s credibility determinations). Accordingly, we affirm the district court’s ruling in No. 01-10075 and dismiss the appeal in No. 00-10333 for lack of jurisdiction. See Guam v. Ulloa, 71 F.3d 334, 335 (9th Cir.1995). Our decision makes it unnecessary for us to consider the Government’s alternative argument that Van’s plea agreement waived his right to appeal.

No. 01-10075 is AFFIRMED; No. 00-10333 is DISMISSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.