United States v. Berry

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6861
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL BERRY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CR-
00-493; CA-03-1599)
Submitted: February 6, 2006 Decided: February 27, 2006
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Remanded by unpublished per curiam opinion.
Michael Berry, Appellant Pro Se. Lynne Ann Battaglia, OFFICE OF
THE UNITED STATES ATTORNEY, Angela R. White, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael Berry seeks to appeal the district court’s order
denying his 28 U.S.C. § 2255 (2000) motion. The district court
docket sheet does not reflect that Berry filed a timely notice of
appeal. However, Berry filed a motion on January 31, 2005,
requesting that the district court apprise him of the status of his
appeal. The district court responded that a notice of appeal had
not been entered on the docket. Berry again filed a motion on May
24, 2005, requesting that the district court apprise him of the
status of his appeal and certificate of appealability. Berry
attached a copy of a notice of appeal, which was dated “November
2004.”
When the United States or its officer or agency is a
party, the notice of appeal must be filed no more than sixty days
after the entry of the district court’s final judgment or order.
See Fed. R. App. P. 4(a)(1)(B). This appeal period is mandatory
and jurisdictional. See Browder v. Dir., Dep’t of Corr., 434 U.S.
257, 267 (1978) (quoting United States v. Robinson, 361 U.S. 220,
229 (1960)). Since the district court entered the judgment against
Berry on October 29, 2004, he had until December 28, 2004, to file
a timely notice of appeal.
Because Berry is incarcerated, his notice of appeal is
deemed filed when it is submitted to prison officials for mailing,
in accordance with Houston v. Lack, 487 U.S. 266 (1988). To
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demonstrate that he timely filed under this rule, Berry must either
submit a notarized statement setting forth the date that he
deposited the notice of appeal with prison officials or,
alternatively, submit a declaration in compliance with 28 U.S.C.
§ 1746 (2000). Fed. R. App. P. 4(c)(1).1
Berry’s statement in his notice of appeal attached as an
exhibit does not comport with the requirements of Rule 4(c)(1) and
28 U.S.C. § 1746, as it is not notarized, makes no reference to the
potential penalty for perjury, and is not specifically dated.
Although Berry’s certificate of service on the notice of appeal
that he attached to his May 2005 motion is inadequate, it may not
be an accurate representation of the final product sent to the
court.2
We remand this case to the district court for further
proceedings to determine if Berry in fact filed a document with the
district court in November 2004 that could be construed as a timely
notice of appeal. If Berry did not file such a document, the
1
Under 28 U.S.C. § 1746(2), an inmate must execute a statement
that a timely notice of appeal was deposited in the prison mail
system in substantially the following form: “I declare (or certify,
verify, or state) under penalty of perjury that the foregoing is
true and correct. Executed on (date). (Signature).” Under Rule
4(c)(1), the inmate must comply with § 1746 or provide a notarized
statement setting forth the same general information as is required
under § 1746.
2
If Berry’s statement is true that he gave his notice of
appeal to prison authorities in November 2004, the notice of appeal
would have been timely filed regardless of the date.
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district court should consider whether the January 31, 2005 motion
to apprise him of the status of his appeal should be construed as
a timely motion for an extension of time to file a notice of
appeal, and if so, whether it should be granted.
We therefore remand the case for the district court to
determine whether Berry filed a timely notice of appeal. 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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