United States v. Stewart , 259 F. App'x 613 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6463
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRY WILLIAM STEWART,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Lacy H. Thornburg,
District Judge. (3:01-cr-00011-2)
Submitted: November 28, 2007 Decided: December 28, 2007
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Remanded by unpublished per curiam opinion.
Terry William Stewart, Appellant Pro Se. Anne Magee Tompkins,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry William Stewart appeals the district court’s orders
(1) denying his Fed. R. Civ. P. 59(e) motion to alter or amend the
court’s order denying his Fed. R. Civ. P. 60(b) motion for
reconsideration of his criminal judgment; and (2) denying his
motion for adjustment of restitution payments pursuant to 18 U.S.C.
§ 3572 (2000). In criminal cases, a defendant must file his notice
of appeal within ten days of the entry of judgment. Fed. R. App.
P. 4(b)(1). With or without a motion, the district court may grant
an extension of time to file of up to thirty days upon a showing of
excusable neglect or good cause. Fed. R. App. P. 4(b)(4); United
States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985). These time
periods are mandatory and jurisdictional. United States v. Raynor,
939 F.2d 191, 196 (4th Cir. 1991).
With respect to Stewart’s appeal of his Rule 59(e)
motion, it was incumbent upon Stewart to file his notice of appeal
within ten days of the March 6, 2007 order, i.e., by March 20,
2007. See Fed. R. App. P. 26(a)(2) (providing that intermediate
Saturdays, Sundays, and legal holidays are excluded when period is
less than eleven days). The district court could have extended the
time within the next thirty days, or until April 19. Fed. R. App.
P. 4(b)(4). By Stewart’s own account, the notice of appeal was
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filed at the earliest on March 23, 2007.1 In his notice of appeal,
Stewart claimed that he did not receive a copy of the denial of his
motion; rather, he learned of the denial from his wife who observed
the denial on the case docket on the internet.
With respect to Stewart’s appeal of the district court’s
March 13, 2007, order denying his pro se motion under § 3572 for
adjustment of restitution payments, it was incumbent upon Stewart
to file his notice of appeal by March 27, 2007. Stewart filed his
notice of appeal at the earliest on April 6, 2007, within the
thirty-day period after expiration of the ten-day appeal period.
In his notice of appeal, Stewart claimed he did not receive his
copy of the order until March 23, 2007.
We remanded the case, which includes both orders, to the
district court for that court to determine whether Stewart could
demonstrate excusable neglect or good cause warranting an extension
of the appeal period as to the appealed orders. On remand, the
district court noted in detail the “tortured procedural history due
to the prolific, harassing and frivolous pro se filings” of
Stewart. The district court explained that Stewart’s pro se
motions were denied because his appeal of his amended judgment was
pending in this Court and Stewart, who was represented by counsel,
had been clearly instructed to address the district court only
1
Because Stewart is incarcerated, the filing date is
determined pursuant to Houston v. Lack, 487 U.S. 266, 276 (1988).
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through counsel. Finding that Stewart’s filings were frivolous,
made without counsel, and designed to harass the judicial system,
and noting Stewart’s history of prolific pro se filings, the
district court found no good cause or excusable neglect for filing
untimely notices of appeal.
A district court’s finding regarding excusable neglect
justifying an extension of the appeal period under Rule 4(b) is
reviewed for abuse of discretion. United States v. Breit, 754 F.2d
526, 528-29 (4th Cir. 1985). A determination of excusable neglect
is based on several factors, including “the danger of prejudice [to
the opposing side], the length of the delay and its potential
impact on judicial proceedings, the reason for the delay, including
whether it was within the reasonable control of the movant, and
whether the movant acted in good faith.” Pioneer Inv. Servs.
Co. v. Brunswick Assocs., 507 U.S. 380, 395 (1993). The most
important of these factors is the untimely party’s reason for
delay. Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 534
(4th Cir. 1996).
An abuse of discretion manifests “in a failure or
refusal, either express or implicit, actually to exercise
discretion, deciding instead as if by general rule, or even
arbitrarily, as if neither by rule nor discretion.” James v.
Jacobson, 6 F.3d 233, 239 (4th Cir. 1993). A district court may
also abuse its discretion in failing to take into account
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judicially recognized factors constraining its exercise or by an
exercise that is flawed by erroneous factual or legal premises.
Id.The timely filing of a notice of appeal is jurisdictional
and a necessary prerequisite to reaching the merits of an appeal.2
While all of the district court’s assertions may be proper grounds
to deny Stewart relief on his motions, they do not implicate the
jurisdictional considerations with respect to whether Stewart
established excusable neglect warranting an extension of the appeal
period. In fact, on remand, the court did not consider any factor
pertaining to the untimely notices of appeal, such as the reason
for delay in filing the notice of appeal and the length of the
delay. Because the district court failed to take into account the
judicially recognized factors in determining whether excusable
neglect exists to excuse the untimely filing of the notices of
appeal, we are constrained to remand to the district court again
for further consideration. The record as supplemented with the
district court’s findings on remand will then be returned to this
court. We dispense with oral argument because the facts and legal
2
Even assuming without deciding that the district court was
not vested with jurisdiction over Stewart’s pro se motions because
his direct appeal was pending, this court would still have
jurisdiction over a timely appeal of the district court’s orders
denying the subject motions.
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
REMANDED
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