United States v. Naus

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-19-2005
USA v. Naus
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3963
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"USA v. Naus" (2005). 2005 Decisions. Paper 382.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/382
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-3963
________________
UNITED STATES OF AMERICA
v.
ROBERT NAUS,
Appellant
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 77-cr-00194-7)
District Judge: Honorable John P. Fullam
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
September 12, 2005
BEFORE: RENDELL, AMBRO and FUENTES, CIRCUIT JUDGES
(Filed: October 19, 2005)
_______________________
OPINION
_______________________
PER CURIAM
In 1977 Robert Naus was convicted of federal drug charges and sentenced to three
years’ imprisonment; we affirmed the following year. Meanwhile, Naus was convicted in
the Delaware County, Pennsylvania, Court of Common Pleas of first degree murder and
rape. In 1980 Naus filed a motion requesting credit against his federal sentence for time
served in state custody. The District Court denied the motion after oral argument and
again we affirmed. United States v. Naus, C.A. No. 80-2359 (3d Cir. June 25, 1982).
Naus subsequently escaped and remained a fugitive for seven years. After he was
returned to state custody, Naus filed a motion pursuant to 28 U.S.C. § 2255 challenging
his federal conviction. We affirmed the denial of that motion in 1994. United States v.
Naus, C.A. No. 93-1538 (3d Cir. February 3, 1994).
Nine years later, Naus filed a motion requesting a copy of his federal sentencing
transcripts, claiming that they would prove that he is entitled to credit against his federal
sentence for time served in state custody. Naus captioned the motion with the docket
number for his federal criminal case and the motion was entered on that docket. The
District Court initially granted the motion but, on learning that the transcript was not
available (evidently the hearing was not transcribed and the stenographer’s notes were
destroyed years ago) subsequently denied it. The court noted this could not prejudice
Naus because he is bound by the District Court’s 1980 denial, affirmed by this Court, of
his petition for sentencing credit. This appeal followed. The government argues that the
appeal should be dismissed for lack of jurisdiction and, alternatively, that it is meritless.
I
The District Court’s order denying Naus’s motion was entered on September 8,
2004. If the motion is treated as a continuation of the underlying criminal case, the
appeal must be dismissed as untimely. Pursuant to Fed. R. App. P. 4(b)(1)(A), Naus’s
notice of appeal was due within ten days. However, the notice, which is dated October 5,
2004, was not filed until October 12, 2004. Even deeming the appeal filed on the day
Naus dated it, it was untimely. The record does not suggest any reasons to extend the
filing deadline, and Naus has not responded to the Government’s brief with reasons why
we should do so. Because timeliness is a mandatory jurisdictional prerequisite, we lack
jurisdiction. United States v. Robinson, 361 U.S. 220, 229-30 (1960).
However, if Naus’s motion is construed as a separate civil action challenging the
execution of his sentence under 28 U.S.C. § 2241, the appeal would be timely because it
was filed within 60 days. Fed. R. App. P. 4(a)(1)(B). Giving Naus the benefit of the
doubt as a pro se litigant, we so construe it because although Naus does request
transcripts, the main focus of his motion – like his appellate brief – is explaining why he
believes he should receive credit against his federal sentence. Moreover, the District
Court effectively addressed this argument on the merits.
II
On appeal, Naus asserts that “it is hard to believe” that the hearing would not have
been transcribed and/or that the stenographer’s notes would have been destroyed. Be that
as it may, he provides no reasons to doubt the District Court’s finding that there is, in fact,
no transcript and nothing to transcribe. In light of that finding, we can hardly fault the
District Court for denying the motion for transcripts. Moreover, as the District Court
explained, Naus litigated the underlying substance of his motion more than 20 years ago.
Our decision in United States v. Naus, C.A. No. 80-2359 (3d Cir. June 25, 1982),
affirming the District Court’s rejection of his sentence credit argument, is now the law of
the case. Naus is essentially asking us to overrule that decision, but we cannot do so
absent such extraordinary circumstances as where the initial decision was clearly
erroneous and would work a manifest injustice. Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 817 (1988). That is hardly the case here. Accordingly, we affirm
the judgment of the District Court.