United States v. Ford , 308 F. App'x 656 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8041
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEMONZE E. FORD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:03-cr-01094-HFF-14; 7:06-cv-02148-HFF)
Submitted: December 1, 2008 Decided: December 22, 2008
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Remanded by unpublished per curiam opinion.
Lemonze E. Ford, Appellant Pro Se. Elizabeth Jean Howard,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lemonze E. Ford seeks to appeal the district court’s
order denying his 28 U.S.C.A. § 2255 (West 2000 & Supp. 2008)
motion. For the reasons that follow, we remand to the district
court.
In civil cases in which the United States or its
officer or agency is a party, parties have sixty 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). A district court may
extend the time to appeal upon a motion filed within thirty days
after expiration of the prescribed time and a showing of
excusable neglect or good cause. This appeal period is
“mandatory and jurisdictional.” Browder v. Dir., Dep’t of
Corr., 434 U.S. 257, 264 (1978) (quoting United States v.
Robinson, 361 U.S. 220, 229 (1960)).
The district court’s order was filed and entered on
its docket on July 10, 2008. The district court received Ford’s
notice of appeal on September 22, 2008, which was after the
sixty-day appeal period expired but before the expiration of the
thirty-day excusable neglect period. In his notice of appeal,
Ford stated that he received the July 10 order “several weeks
late,” and he requests permission to file a “timely notice” of
appeal. We liberally construe Ford’s pro se filing as a motion
for an extension of time to file his appeal.
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Because the notice of appeal was filed within the
excusable neglect period and because the district court has not
ruled on the motion for extension, we remand this case to the
district court for the limited purpose of enabling the district
court to determine whether Ford has shown excusable neglect or
good cause warranting an extension of the sixty-day appeal
period. The record, as supplemented, will then be returned to
this court for further consideration. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
REMANDED
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