United States v. Michael Speed , 603 F. App'x 129 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7298
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL SPEED,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:10-cr-00700-JFM-1; 1:14-cv-00583-JFM)
Submitted: January 26, 2015 Decided: March 2, 2015
Before NIEMEYER, KING, and KEENAN, Circuit Judges.
Remanded by unpublished per curiam opinion.
Michael Speed, Appellant Pro Se. Benjamin M. Block, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Speed seeks to appeal the district court’s
order denying his 28 U.S.C. § 2255 (2012) motion. The order is
not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012).
Before determining whether Speed has satisfied the requirements
necessary for issuance of a certificate of appealability,
however, this court must assure itself that Speed timely
appealed the district court’s dismissal order. See Bowles v.
Russell, 551 U.S. 205, 214 (2007) (“[T]he timely filing of a
notice of appeal in a civil case is a jurisdictional
requirement.”); see also Hernandez v. Thaler, 630 F.3d 420, 424
(5th Cir. 2011) (“Before turning to the merits of Hernandez’s
motion for a [certificate of appealability], we pause to assure
ourselves of our jurisdiction. Habeas proceedings are civil
actions, and the timely filing of a notice of appeal is a
jurisdictional prerequisite to a civil appeal.”) (footnotes
omitted).
When, as here, the United States or its officer or
agency is a party to an action, a notice of appeal must be filed
no more than sixty days after the entry of the district court’s
final judgment or order, Fed. R. App. P. 4(a)(1)(B), unless the
district court extends the appeal period under Fed. R. App. P.
4(a)(5), or reopens the appeal period under Fed. R. App. P.
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4(a)(6). The district court entered its order denying Speed’s
§ 2255 motion on June 19, 2014, making Speed’s notice of appeal
due no later than August 18, 2014. Speed’s notice of appeal was
not filed until August 25, 2014 and, thus, was untimely filed.
Despite the foregoing, we find error in the district
court’s handling of Speed’s July 9, 2014 correspondence, which
the district court construed as an inquiry into the status of
Speed’s case. Speed’s July 9, 2014 correspondence—which was
filed within the time for making a Fed. R. Civ. P. 59(e) motion *—
explicitly informed the district court that it neglected to rule
on the ineffective assistance of counsel claims Speed raised in
his motion to amend his § 2255 motion, which was granted by the
district court. Moreover, in that correspondence, Speed
explicitly asked the district court for direction on how to
proceed by asking whether he should note an appeal to this court
or file a reconsideration motion in the district court. Because
we conclude that the district court should have construed
Speed’s July 9, 2014 correspondence as a Rule 59(e) motion, we
remand this matter to the district court to allow it to docket
Speed’s July 9, 2014 correspondence as a Rule 59(e) motion. See
Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978) (holding,
*
A motion to alter or amend judgment must be made within
twenty-eight days of entry of the order being challenged. Id.3
under a prior version of Rule 59(e), that “if a post-judgment
motion is filed within ten days of the entry of judgment and
calls into question the correctness of that judgment it should
be treated as a motion under Rule 59(e), however it may be
formally styled”).
Because it is unclear whether the district court
considered the ineffective assistance of counsel claims Speed
raised in his amended § 2255 motion, and since it is imperative
that the district court be given an opportunity to review those
claims in the first instance, we find that allowing the district
court to rule on the merits of Speed’s Rule 59(e) motion would
aid this appeal. See Fobian v. Storage Tech. Corp., 164 F.3d
887, 890 (4th Cir. 1999) (“Indeed, it would be both inefficient
and unfortunate to require the district court to wait until the
underlying appeal is completed before giving any indication of
its desire to grant a pending [Fed. R. Civ. P.] 60(b) motion.
Such a prohibition would likely render the initial appeal
pointless in cases where the district court ultimately grants
the motion following appeal.”).
Accordingly, we order a limited remand and direct the
district court to promptly docket Speed’s July 9, 2014
correspondence as a Rule 59(e) motion and to consider the motion
on its merits. If the district court concludes that the motion
is meritless, it should deny it with an explanation of its
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finding and any appeal from the district court’s denial of
relief will be consolidated with this appeal. If the district
court is inclined to grant the motion, it must issue a short
memorandum so stating, and Speed can request that this court
issue a limited remand so the district court can rule on the
ineffective assistance of counsel claims Speed raised in his
motion to amend his § 2255 motion. If either party is
dissatisfied after the district court disposes of the Rule 59(e)
motion, any appeal from the district court’s final order will be
consolidated with this appeal. Regardless of the outcome of the
Rule 59(e) motion, the record, as supplemented, will be returned
to this court for further consideration.
In ordering this remand, we express no opinion as to
the merits of the Rule 59(e) motion. Any statement of our views
at this time would necessarily infringe on the proper role of
the district court in considering the motion in the first
instance. We also decline to rule at this time on whether Speed
is entitled to a certificate of appealability as to the district
court’s order denying the § 2255 motion, but defer ruling on the
application pending resolution of the Rule 59(e) motion. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
REMANDED
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