United States v. Heard

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-30026
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL O’SHEA HEARD,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
(98-CR-30011-1)
_________________________
December 7, 2000
Before POLITZ, SMITH, and PARKER, 20, 1999, and the court entered the judgment
Circuit Judges. on October 26, 1999. The court appointed an
attorney on October 25, 1999. Heard filed no
PER CURIAM:* motions or notices of appeal after the entry of
the judgment until December 21, 1999. The
Michael Heard was sentenced on October district court granted his motion for out-of-
time appeal on January 3, 2000, and Heard
filed his appeal that day.
*
Pursuant to 5TH CIR. R. 47.5, the court has I.
determined that this opinion should not be
“A timely notice of appeal . . . is a pre-
published and is not precedent except under the
requisite to our exercise of jurisdiction.” Unit-
limited circumstances set forth in 5TH CIR. R.
47.5.4. ed States v. Winn, 948 F.2d 145, 153 (5th Cir.
1991). Under FED. R. APP. P. 4(b), a de- Even if the time for filing a motion for out-
fendant has ten days after the entry of the of-time appeal had expired, the district court
judgment being appealed to file his notice of could have granted an appeal pursuant to 28
appeal. Rule 4(b)(4) allows a district court to U.S.C. § 2255.2 See Mack v. Smith, 659 F.2d
extend the time for filing for an additional thir- 23, 25-26 (Former 5th Cir. Oct. 1981). Cases
ty days if it finds “excusable neglect” or “good in which § 2255 motions have essentially al-
cause.” lowed out-of-time appeals generally allege in-
effective assistance of counsel. See, e.g., Unit-
Heard waited over forty days to move for ed States v. Lankford, 196 F.3d 563, 569 (5th
an out-of-time appeal. In United States v. Cir. 1999), cert. denied, 120 S. Ct. 1984
Awalt, 728 F.2d 704, 705 (5th Cir. 1984), we (2000); United States v. Clark, 193 F.3d 845,
held that “[c]ourts cannot extend the time pe- 846 (5th Cir. 1999); Barrientos v. United
riod beyond the forty-day time period States, 668 F.2d 838, 842 (5th Cir. 1982);
prescribed by Rule 4(b).” A “late notice or Mack, 659 F.2d at 25. There is no allegation
some other filing evidencing an intention to of ineffective assistance.
appeal must be filed within the forty-day
period.” Id. Therefore, because Heard failed to file any
motion or notice of appeal within the forty-day
II. period afforded by the extension, we find no
We have treated the appointment of counsel ground on which the district court properly
as the equivalent of the grant of an out-of-time could base its motion to grant an out-of-time
appeal. See United States v. Lister, 53 F.3d appeal. We therefore DISMISS the appeal for
66 (5th Cir. 1995); United States v. Quimby, want of jurisdiction.
636 F.2d 86 (5th Cir. Unit A Feb. 1981). In
Quimby, this court treated the district court’s
authorization for defendant to proceed in
forma pauperis on appeal twelve days after the
entry of judgment as a finding of excusable
neglect. 636 F.2d at 89. Lister extended this
reasoning to find a court’s ruling on
defendant’s motion for appointment of sub-
stitute appellate counsel tantamount to a find-
ing of excusable neglect. 52 F.3d at 68.
2
Even this liberal construction, however, The relevant portion of the statute reads:
does not assist Heard. Both Quimby and Lis-
ter filed their notices of appeal within the If the court finds . . . that there has been
such a denial or infringement of the
forty-day limit. Heard filed no motion within
constitutional rights of the prisoner as to
this time, and Awalt plainly indicates that some
render the judgment vulnerable to collateral
filing within the forty-day period is necessary attack, the court shall vacate and set the
for the court even to consider extending the judgment aside and shall discharge the
time for excusable neglect. Thus, the district prisoner or resentence him or grant a new
court erred in granting the motion for out-of- trial or correct the sentence as may appear
time appeal. appropriate.
2