UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7599
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHNNY JOSEPH, a/k/a Joe Sanders,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Cameron McGowan Currie, District
Judge. (4:00-cr-00067-CMC-1)
Submitted: June 30, 2011 Decided: July 12, 2011
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Johnny Joseph, Appellant Pro Se. Alfred William Walker Bethea,
Jr., Assistant United States Attorney, Florence, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnny Joseph appeals from the district court’s order
denying his motion to extend the time to appeal. Because our
review of the record shows that Joseph’s motion to extend should
have been construed as a timely notice of appeal, we vacate the
district court’s order.
On August 18, 2010, Joseph filed a motion to revisit
his conviction. The district court returned the motion as it
was unsigned. Joseph then filed a motion to clarify. In an
order entered September 8, 2010, the district court granted the
motion to clarify but denied the motion to reopen, construing it
as a successive 28 U.S.C.A. § 2255 (West Supp. 2011) motion.
The court also denied a certificate of appealability.
On October 7, Joseph filed a motion for extension of
time to file an appeal and a request for a certificate of
appealability. Joseph noted that the time limit in criminal
cases applied, and as such, his motion was filed within the
excusable neglect period. See Fed. R. App. P. 4(b) (providing
notice of appeal must be filed within fourteen days of judgment
but may be extended for another thirty days upon a finding of
excusable neglect). He asserted that his institution had been
on lockdown from September 12 to September 22, preventing his
timely filing. He also contended that the district court erred
in recharacterizing his motion without notice.
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On October 29, the district court denied the motion
for extension of time. The court noted that, after the lockdown
was ended, Joseph still had ample time under the fourteen day
appeal period in Rule 4(b)(1)(A) to file his notice of appeal.
On November 12, Joseph filed a notice of appeal from the court’s
October 29 order. In his informal brief, Joseph asserts that
the district court erred by ruling that he had not shown
sufficient excusable neglect.
The determination of whether an extension of time was
even required depends on whether Joseph’s motion to reopen was
criminal or civil in nature, as the former provides a defendant
with a fourteen-day period to file a notice of appeal, while the
latter has a sixty-day appeal period. See Fed. R. App. P.
4(a)(1)(B), 4(b)(1)(A). Joseph’s motion to extend time was
filed twenty-nine days after the district court’s order denying
his motion to reopen.
While both Joseph and the district court appear to
believe that the criminal appeal period applies, we conclude
that, in fact, the civil appeal period is applicable. The
district court construed Joseph’s motion as a successive § 2255
motion and counseled Joseph that a certificate of appealability
was required. Moreover, the district court’s construction was
correct, as there is no criminal rule of procedure that permits
a motion to reopen a sentence nearly a decade after conviction.
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Thus, we conclude that Joseph’s motion for extension
of time should have been construed as a notice of appeal, as no
extension was necessary and Joseph had clearly evinced a desire
to appeal. If so construed, Joseph’s appeal was clearly timely
filed within the sixty day appeal period. As such, we vacate
the order of the district court denying Joseph’s motion to
extend and remand with instructions to construe Joseph’s motion
to extend as a timely appeal of the denial of his motion to
reopen. 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.
VACATED AND REMANDED
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