United States v. Rudolph Hubbard , 392 F. App'x 35 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1346
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UNITED STATES OF AMERICA
v.
RUDOLPH HUBBARD,
Appellant.
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On Appeal from the District Court of the Virgin Islands
(D.C. Criminal No. 3-05-cr-00067-001)
District Judge: The Honorable Curtis V. Gomez
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Submitted Under Third Circuit LAR 34.1(a)
December 4, 2009
BEFORE: McKEE, Chief Judge, FUENTES and NYGAARD, Circuit Judges.
(Filed: August 26, 2010 )
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Since this opinion is wholly without precedential value, we write solely for the
benefit of the parties who are familiar with the factual and procedural history of this case.
We will dismiss the appeal.
Rudolph Hubbard appeals the judgment of May 18, 2007, ordering a special
assessment of $10.00 and restitution in the amount of $181.00 following his earlier plea
of nolo contendere to destruction of government property.1 On June 4, 2008, Hubbard
filed for an extension of time to file his notice of appeal. The District Court granted the
motion on February 4, 2009.
“An appeal permitted by law as of right from a district court to a court of appeals
may be taken only by filing a notice of appeal with the district clerk within the time
allowed by Rule 4.” Fed.R.App.P. 3(a)(1). “In a criminal case, a defendant’s notice of
appeal must be filed in the district court within 14 days after the later of: (i) the entry of
either the judgment or the order being appealed; or (ii) the filing of the government’s
notice of appeal.” Fed.R.App.P. 4(b)(1)(A). Rule 4 goes on to state the following:
Upon a finding of excusable neglect or good cause, the
district court may--before or after the time has expired, with
or without motion and notice--extend the time to file a notice
of appeal for a period not to exceed 30 days from the
expiration of the time otherwise prescribed by this Rule 4(b).
1
At the time of the event grounding this case, Hubbard was in custody because of
his indictment for illegal entry into the United States, and a false claim of citizenship.
United States v. Hubbard, No. 3:06-cr-00004 (D.Virgin Islands filed Jan. 10, 2006). The
Magistrate Judge found Hubbard incompetent to stand trial and dismissed the charges on
May 25, 2009.
2
Fed.R.App.P. 4(b)(4).
The District Court’s decision to grant an extension of time to appeal is reviewed
for an abuse of discretion. See Ramseur v. Beyer, 921 F.2d 504, 506 n.2 (3d Cir. 1990).
Because Hubbard filed his motion for extension one year and sixteen days after the court
entered judgment on the docket, there is no question that Hubbard’s motion for an
extension of time was filed well after the statutory period for such motions expired. The
threshold question, therefore, is whether the District Court abused its discretion in
granting Hubbard’s motion for an extension of time. We conclude that it did.
We have consistently given a strict interpretation to the filing deadline specified in
Rule 4. See, e.g., United States v. Carelock, 459 F.3d 437, 441 & n.7 (3d Cir. 2006).
Rule 4 plainly states that a motion for an extension of time to file a notice of appeal
cannot be granted after the thirty-day grace period has expired. The language articulating
this deadline is not precatory. As a result, it is clear that the District Court abused its
discretion in granting a motion that was not compliant with Rule 4. Moreover, because
the District Court exceeded the boundaries of its discretion in granting the motion to
extend the filing deadline, Hubbard’s notice of appeal is rendered a nullity. For this
reason, we will dismiss this appeal.
3