State of Texas v. Clark

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 29, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10589
Summary Calendar
STATE OF TEXAS
Plaintiff-Appellee
V
ANN WHITLOW CLARK
Defendant-Appellant
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CV-1990-P
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Before KING, Chief Judge, and EMILIO M. GARZA and BENAVIDES,
Circuit Judges.
PER CURIAM:*
Ann Whitlow Clark, currently Texas prisoner # 1150868,
attempted to remove her state-court criminal charges to federal
court pursuant to 28 U.S.C. § 1443. The district court ordered
that the case be remanded to state court because Clark had not
met the standard for removal under that statute. After the time
for filing a notice of appeal had expired, Clark filed a motion
for an extension of time to file a notice of appeal. Clark’s
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-10589
-2-
motion was not timely pursuant to FED. R. APP. P. 4(a)(5).
See Wilkens v. Johnson, 238 F.3d 328, 330 (5th Cir.), cert.
denied, 533 U.S. 956 (2001). Clark’s notice could also be
construed as a motion to reopen the time for filing an appeal,
pursuant to FED. R. APP. P. 4(a)(6). See id. at 331. Clark’s
motion was not, however, filed within seven days of the date she
received notice of the entry of judgment and thus does not
satisfy the standards of FED. R. APP. P. 4(a)(6)(A).
Clark asserts that she mailed a previous motion for an
extension of time, which would have been timely under FED. R. APP.
P. 4(a)(5), but that the motion was returned unfiled by the
district court clerk. She has not, however, provided any
corroboration of that filing. Although she has attempted to
submit a copy of her previous motion, it was not submitted to the
district court and this court does not ordinarily consider
evidence not before the district court. See Trinity Industries,
Inc. v. Martin, 963 F.2d 795, 799 (5th Cir. 1992).
AFFIRMED.