United States v. Daniel Wright , 131 F. App'x 698 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 16, 2005
No. 04-14400 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 99-00022-CR-RH-WCS
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
DANIEL WRIGHT,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 16, 2005)
Before TJOFLAT, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Daniel Wright, proceeding pro se, appeals from the district court’s denial of
his motion for leave to file a belated appeal from the denial of his motion for a
new trial, which he had filed pursuant to Fed. R. Crim. P. 33 (“Rule 33 motion”).
Wright’s Rule 33 motion sought a new trial based on his claims of both newly
discovered evidence and newly discovered facts. The district court denied
Wright’s Rule 33 motion on February 21, 2001, though its order addressed only
Wright’s newly discovered evidence claims without mention of his “newly
discovered facts” claim relating to the trial testimony of Charles Williams.
In August 2004, more than three years after the district court denied his
Rule 33 motion, Wright filed a motion for leave to file a belated notice of appeal
from that denial. In that motion, Wright argued that he never received notice of
the denial of his Rule 33 motion because the copy that was mailed to him was
returned to the court as undeliverable. The district court denied Wright’s motion
for leave to file a belated appeal.
On appeal, Wright argues that the district court abused its discretion in
denying his motion for leave to file a belated notice of appeal from the denial of
his Rule 33 motion. Wright also argues that the district court erred in failing to
resolve his newly discovered facts claim as to the testimony of government
witness Williams. He asserts that we should issue a writ of mandamus, instructing
the district court to resolve this claim for purposes of finality, pursuant to Clisby v.
Jones, 960 F.2d 925 (11th Cir. 1992) (en banc).
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BELATED APPEAL
We review the decision on a motion for an extension of time to appeal for
an abuse of discretion. In re Old Naples Sec., Inc., 223 F.3d 1296, 1302 n.7 (11th
Cir. 2000). “In a criminal case, a defendant’s notice of appeal must be filed in the
district court within 10 days after” the entry of the order being appealed. Fed. R.
App. P. 4(b)(1)(A)(i). Although the clerk of court must provide notice to the
defendant regarding any order entered on any post-arraignment motion, a clerk’s
failure to do so “does not affect the time to appeal, or relieve – or authorize the
court to relieve – a party’s failure to appeal within the allowed time.” Fed. R.
Crim. P. 49(c). However, upon a finding that the failure to file during the original
period resulted from “excusable neglect or good cause”, the district court may
authorize an extension, but only for a period not to “exceed 30 days from the
expiration of time otherwise prescribed by this Rule 4(b).” Fed. R. App. P.
4(b)(4); see also, United States v. Grant, 256 F.3d 1146, 1150-51 (11th Cir. 2001)
(“Grant’s second notice of appeal, however, was filed . . . more than 30 days late
and therefore does not fall within the Rule 4(b)(4) window.”). In addition to Rule
4(b)(4), we also recognize the “unique circumstances doctrine” which excuses
failure to abide by time limitations where the failure is caused by the litigant’s
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reasonable reliance on a judicial officer’s specific assurance. See Jackson v.
Crosby, 375 F.3d 1291, 1297 (11th Cir. 2004).
Wright cannot satisfy the criteria for any of the exceptions to the time
limitation for filing a notice of appeal. Wright did not file his notice of appeal
within the ten days of the district court’s judgment, nor within an additional thirty
days beyond that period, precluding application of Rule 4(b)(4). Nor can Wright
rely on the unique circumstances doctrine, as Wright’s did not rely upon any
“specific assurance by a judicial offer” in failing to timely file his notice of appeal.
See Vencor Hosps. v. Standard Life & Accident Ins. Co., 279 F.3d 1306, 1312
(11th Cir. 2002) (“Crucial to the application of the unique circumstances doctrine
is the occurrence of a judicial action upon which a party relies in failing to file a
timely notice of appeal. As a result, the mere failure of the district court clerk's
office to serve Appellant with notice . . . does not constitute a judicial assurance
or action sufficient to warrant relief under the unique circumstances doctrine.”).
We thus conclude that the district court did not abuse its discretion in denying
Wright’s motion to file a belated notice of appeal from the denial of his Rule 33
motion.
MANDAMUS
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The issuance of a writ of mandamus is “an extraordinary remedy, to be
reserved for extraordinary situations.” United States v. Noriega, 917 F.2d 1543,
1546 n.3 (11th Cir. 1990) (quotation omitted). The party seeking mandamus bears
the burden of demonstrating a “clear and indisputable right to issuance of the
writ.” Id.We have exercised our supervisory powers to instruct district courts to
resolve all claims for relief raised in a habeas corpus petition regardless of whether
habeas relief is ultimately granted or denied. Clisby, 960 F.2d at 936. However,
our holding in Clisby arose out of concern for the increasingly piecemeal nature of
federal habeas corpus litigation, and its holding is limited by its own terms to
habeas cases. Id. Clisby thus provides no basis for a writ of mandamus regarding
the district court’s failure to specifically address Wright’s Rule 33 claim relating
to government witness Williams.
CONCLUSION
Upon review of the record and the parties’ briefs, we find no reversible
error. Accordingly, we affirm the district court’s denial of Wright’s motion for
leave to file a belated appeal from the denial of his Rule 33 motion.
AFFIRMED.
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