United States v. Solomon Powell , 547 F. App'x 319 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7030
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SOLOMON N. POWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:07-cr-00324-JRS-1; 3:12-cv-00023-JRS)
Submitted: November 15, 2013 Decided: December 4, 2013
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Remanded by unpublished per curiam opinion.
Solomon N. Powell, Appellant Pro Se. Michael Ronald Gill,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Solomon N. Powell seeks to appeal the portion of the
district court’s order dismissing his 28 U.S.C.A. § 2255 (West
Supp. 2013) motion. 1 Parties in a civil action in which the
United States or an officer or agency of the federal government
is a party are accorded 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). This time period is “mandatory and
jurisdictional.” Browder v. Dir., Dep’t of Corr., 434 U.S. 257,
264 (1978) (internal quotation marks omitted); see also
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.”). However, if a party moves for an extension of
time to appeal within thirty days after the expiration of the
original appeal period and demonstrates excusable neglect or
good cause, a district court may extend the time to file a
notice of appeal. Fed. R. App. P. 4(a)(5)(A).
1
Although Powell also appeals the portions of the district
court’s order denying his 18 U.S.C. § 3582(c)(2) (2012) motion
for a sentence reduction and his motion for reduction of
restitution, we defer disposition of those portions of Powell’s
appeal until the case is returned from the district court. We
also defer disposition of Powell’s pending motion to include the
documents attached to his misrouted notice of appeal with his
informal brief.
2
The district court entered judgment against Powell on
March 20, 2013; Powell therefore had until May 20 to file a
timely notice of appeal of the dismissal of his § 2255 motion.
Powell filed his notice of appeal on May 29 at the earliest. 2
However, Powell separately filed a motion for extension of time
on the same day and within the thirty-day excusable neglect
period. 3 Accordingly, we remand for the limited purpose of
determining whether Powell has demonstrated 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.
REMANDED
2
Although the envelope in which Powell submitted his notice
of appeal does not clearly indicate the date he delivered it to
prison officials for mailing to the court, we conclude from an
examination of the record that he did not do so prior to May 29.
See Houston v. Lack, 487 U.S. 266, 276 (1988) (holding that
prisoner’s notice of appeal deemed filed on date he delivered it
to prison authorities for mailing to court). Moreover, the fact
that Powell mistakenly mailed his notice of appeal to this court
does not affect the timeliness determination. See Fed. R. App.
P. 4(d) (providing that notice of appeal mistakenly filed in
court of appeals is considered filed in district court on date
so noted).
3
Although we previously construed Powell’s “Motion for
Request to File an Out of Time Request for COA” and “Request for
Certificate of Appealability” collectively as a notice of
appeal, upon closer examination, we construe the former motion
as a Fed. R. App. P. 4(a)(5) motion for an extension of time to
file an appeal and the latter motion as Powell’s notice of
appeal.
3