IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41169
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO D. TILMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:97-CV-144
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June 4, 1999
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Ricardo Tilman filed a motion under 28 U.S.C. § 2255 to
vacate, set aside, or correct sentence by a person in federal
custody on April 29, 1997. The district court denied this motion
as barred by the statute of limitations on October 31, 1997. On
April 27, 1998, Tilman, through counsel, filed a motion to accept
notice of appeal nunc pro tunc asserting that she had not
received notice of the October 31, 1997, final judgment until
April 13, 1998. The district court found that the motion was
*
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that this opinion should not be published and is not precedent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. 98-41169
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brought under Fed. R. App. P. 4(a)(6), but was not filed within
seven days of receipt of notice of the entry of the October 31,
1997, judgment.
Tilman has filed a motion for COA with this court. As the
denial of the motion to reopen the time of appeal is not the
final order in a proceeding under § 2255, a COA is not necessary
for this appeal. See 28 U.S.C. § 2253(c)(1)(B). The motion for
COA is DENIED as unnecessary.
The district court may reopen the time for appeal for a
period of 14 days from the date of the order reopening the time
of appeal, if a party entitled to notice of the entry of a
judgment or order did not receive such notice from the clerk or
any party within 21 days of its entry, no party is prejudiced,
and a motion is filed within 180 days of entry of the judgment or
order or seven days of receipt of notice, which ever is earlier.
Rule 4(a)(6). We review a ruling on a motion to extend the
period for filing and notice of appeal pursuant to Rule 4(a) for
abuse of discretion. United States v. Clark, 51 F.3d 42, 43 (5th
Cir. 1995).
Tilman’s counsel admits and the record verifies that she
received notice of the October 31, 1997, judgment on April 13,
1998, via facsimile machine (fax). Tilman had seven days,
excluding weekends and holidays, following receipt of notice of
the entry of judgment to file his motion to reopen. Fed. R. App.
P. 4(a)(6); Fed. R. Civ. P. 6(a). Tilman argues that he was
entitled to an additional three days under Fed. R. Civ. P. 6(e),
Additional Time After Service by Mail. The three day mailing
No. 98-41169
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extension does not apply because rule 4(a)(6) does not require
that any action be taken following notice which was served by
mail. See Fed. R. Civ. P. 6(e). Rule 4(a)(6) does not state the
time limits in terms of notice after service, but in terms of
receipt of notice. The specific language of the rule allows that
the time does not begin to run until the notice of entry of
judgment is received regardless of the manner of transmission.
As it is admitted that notice was received on April 13, 1998, the
district court did not abuse its discretion in finding that the
filing of the motion 14 days later on April 27, 1998, was
untimely.
AFFIRMED.