United States v. Harrison

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 28, 2009
No. 07-41087
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
WILLIAM HENRY HARRISON, also known as Wayne Green,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:99-CR-2-1
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
William Henry Harrison, pro se, appeals the district court’s order denying
his motion to vacate and reissue its August 11, 2005, order denying his motion
for new trial. He argues that he proved by clear and convincing evidence that
he had not been served with notice and a copy of the court’s August 11, 2005,
order denying his motion for a new trial. He also argues that the district court
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 07-41087
should have granted coram nobis relief. Harrison’s motion for an extension of
time to file a reply brief is GRANTED.
This court previously dismissed as untimely Harrison’s appeal from the
district court’s denial of his motion for a new trial. This court has held that,
since F ED. R.A PP. P. 4(b)(1)(A)’s 10-day time limit to file a notice of appeal is not
statutorily imposed, it is “not jurisdictional and [can] be waived.” United States
v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007). The Government filed in the
district court a response in opposition to Harrison’s request to vacate and reissue
the order denying his motion for a new trial; further, the Government argues on
appeal that Harrison’s appeal is untimely. Thus, the Government has not
waived the issue.
Although, as the district court noted in denying Harrison’s motion, the
district court clerk must provide notice of the entry of an order on any post-
arraignment motion, “[e]xcept as Federal Rule of Appellate Procedure 4(b)
provides otherwise, the clerk’s failure to give notice does not affect the time to
appeal, or relieve--or authorize the court to relieve--a party’s failure to appeal
within the allowed time.” F ED. R. C RIM. P. 49(c); see F ED . R. A PP. 26(b)(1) (the
court may not extend the time to file a notice of appeal except as authorized by
Rule 4). Harrison has not shown that the district court made an affirmative
representation or specific assurances that misled him and caused his notice of
appeal to be filed late. See Osterneck v. Ernest & Winney, 489 U.S. 169, 179
(1989).
To the extent that Harrison argues that the district court should have
granted him coram nobis relief, “[t]he writ of coram nobis is an extraordinary
remedy available to a petitioner no longer in custody who seeks to vacate a
criminal conviction in circumstances where the petitioner can demonstrate civil
disabilities as a consequence of the criminal conviction, and that the challenged
error is of sufficient magnitude to justify the extraordinary relief.” Jimenez v.
Trominski, 91 F.3d 767, 768 (5th Cir. 1996). Since Harrison was in custody
2
No. 07-41087
when he sought coram nobis relief, the writ of coram nobis is not an avenue of
relief that is available to him. See United States v. Hatten, 167 F.3d 884, 887 n.6
(5th Cir. 1999).
The district court’s order denying Harrison’s motion to vacate and reissue
its order denying his motion for a new trial is AFFIRMED.
3