USCA11 Case: 22-11791 Document: 19-1 Date Filed: 01/30/2023 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11791
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIOUS G. LOCKHART,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:17-cr-00001-LAG-CHW-1
____________________
USCA11 Case: 22-11791 Document: 19-1 Date Filed: 01/30/2023 Page: 2 of 4
2 Opinion of the Court 22-11791
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
Antonious Lockhart, proceeding pro se, appeals from the
district court’s denial of his motion seeking credit for time served
in a prior state sentence under
18 U.S.C. § 3585(b) and a modifica-
tion of his sentence based on an alleged misapplication of U.S.S.G.
§ 5G1.3(b). The government, in its response brief, argues that
Lockhart’s appeal should be dismissed as untimely under Federal
Rule of Appellate Procedure 4(b)(1)(A)(i).
We treat post-judgment motions for a sentence reduction as
a continuation of a criminal case. See United States v. Fair,
326 F.3d
1317, 1318 (11th Cir. 2003) (per curiam) (holding that an 18 U.S.C.
Ҥ 3582(c)(2) motion is not a civil post-conviction action, but rather
a continuation of the criminal case”). Federal Rule of Appellate
Procedure 4(b) provides a 14-day period to file a notice of appeal in
criminal cases. Fed. R. App. P. 4(b)(1)(A)(i). The 14-day deadline
for filing a notice of appeal in criminal cases is a non-jurisdictional,
claims-processing rule. United States v. Lopez,
562 F.3d 1309,
1311–13 (11th Cir. 2009). When the government asserts timeliness
as an issue on appeal, we must apply the time limits of Rule 4(b).
Id. at 1314.
We consider a pro se prisoner’s filings as filed on the date
that he delivers them to prison authorities for mailing. Jeffries v.
United States,
748 F.3d 1310, 1314 (11th Cir. 2014) (per curiam).
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22-11791 Opinion of the Court 3
Without evidence to the contrary, we assume that a prisoner pro-
vided his filing to prison officials on the date that he signed it.
Id.
The burden of proof is on the government to show that a filing was
delivered to prison authorities for mailing on a date other than the
date that the prisoner signed it.
Id.
If necessary, the determination of the date that the prisoner
delivered the filing to prison authorities is a factual question for the
district court to resolve on remand. Sanders v. United States,
113
F.3d 184, 186 n.2 (11th Cir. 1997) (per curiam). In criminal cases,
we customarily treat a late notice of appeal that is filed within 30
days during which an extension is permissible “as a motion for ex-
tension of time but a motion that properly should be decided by
the district court.” United States v. Ward,
696 F.2d 1315, 1317 (11th
Cir. 1983); see also Fed. R. App. P. 4(b)(4) (providing that, upon a
showing of excusable neglect or good cause, a district court may
extend the time to file a notice of appeal for a period not to exceed
30 days from the expiration of the original appeal period). In those
cases, it is our practice “to remand to the district court for a deter-
mination whether excusable neglect justifies an extension” of the
appeal period. Ward,
696 F.2d at 1317–18.
As an initial matter, the 14-day appeal period provided in
Rule 4(b) applies to Lockhart’s appeal because his motion for a re-
duction in sentence is an extension of the criminal case, not a civil
post-conviction action. Therefore, Lockhart had until April 27,
2022, to file his notice of appeal, which was 14 days after the district
court’s order denying his motion was entered on the docket.
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4 Opinion of the Court 22-11791
Here, the postmarked date of Lockhart’s notice of appeal
packet is May 19, 2022, well past the deadline to file his notice of
appeal. But as our case law states, the postmarked date will not
necessarily govern if Lockhart signed his notice of appeal before
the April 27 deadline. Although Lockhart signed his notice of ap-
peal, he did not date it. As a result, we do not have a presumed
date on which Lockhart delivered his notice of appeal to the prison
authorities. In his reply brief, Lockhart states, under penalty of per-
jury, that he gave the packet to prison officials on April 21, 2022.
But the envelope containing Lockhart’s notice of appeal paperwork
is postmarked with the date of May 19, 2022. “This conflicting ev-
idence creates a factual question to be decided in the first instance
by the district court.” Boatman v. Berreto,
938 F.3d 1275, 1278
(11th Cir. 2019).
Thus, we REMAND to the district court to determine, as a
factual matter, whether Lockhart’s notice of appeal was timely.
Further, if the district court determines that Lockhart did not
timely deliver the notice of appeal to prison authorities, it must also
determine whether the delay was caused by either good cause or
excusable neglect because the postmark date on the notice of ap-
peal falls within the 30-day extension period that would have begun
to run on April 27, 2022.
Following this limited remand, the record as supplemented
will be returned for further consideration. We defer ruling on the
merits of Lockhart’s appeal pending the limited remand.
