Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
10-31-2008
Bruce Roberts v. USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3562
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ALD-11 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3562
BRUCE JAMES ROBERTS,
Appellant,
v.
UNITED STATES OF AMERICA
__________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 04-cv-05045)
District Judge: Honorable Katharine S. Hayden
____________________________________
Submitted for Possible Summary Action Pursuant
to Third Circuit LAR 27.4 and I.O.P. 10.6
October 17, 2008
Before: SLOVITER, FUENTES and JORDAN, Circuit Judges
(Opinion filed: October 31, 2008)
OPINION
PER CURIAM
Appellant Bruce Roberts, a federal prisoner, was found guilty following a jury trial
in United States District Court for the District of New Jersey of conspiring to commit
bank robbery in violation of 18 U.S.C. § 371 and bank robbery in violation of 18 U.S.C. §
2113(a). On February 12, 1996, he was sentenced as a career offender to a term of
imprisonment of 210 months and fined $5,000.00. We affirmed the judgment on October
9, 1996 in United States v. Roberts, No. 96-5142, and the United States Supreme Court
thereafter denied certiorari. On February 28, 1998, Roberts filed a motion to vacate
sentence pursuant to 28 U.S.C. § 2255, which the sentencing court denied on the merits.
On March 10, 1999, we denied Roberts’ request for a certificate of appealability in United
States v. Roberts, No. 98-6388.
On August 27, 2004, Roberts filed a motion seeking modification of his sentence
under 18 U.S.C. § 3582(c)(2) on the basis of the Supreme Court’s decision in Blakely v.
Washington, 542 U.S. 296 (2004). The District Court Clerk’s Office opened the instant
civil case, and docketed this motion as a motion to vacate sentence under 28 U.S.C. §
2255. On September 7, 2007, Roberts filed a motion pursuant to Fed. R. Crim. Pro.
52(b), in which he contended that he was indigent and “the delegation of an installment
plan to the Bureau of Prisons” to collect his fine was improper. See generally United
States v. Corley, 500 F.3d 210 (3d Cir. 2007) (restitution order which delegates to BOP
how defendant will pay improperly delegates judicial function). On December 17, 2007,
Roberts filed a supplement in which he asked for relief under Amendment 709 of the
United States Sentencing Guidelines. See U.S.S.G. § 4A1.2. He claimed that the
sentencing court improperly counted a parole violation as a prior sentence in calculating
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his criminal history score.
On December 31, 2007, the District Court dismissed all three requests for relief for
lack of jurisdiction, reasoning that they were unauthorized second or successive section
2255 motions. The court noted further that Blakely and United States v. Booker, 543
U.S. 220 (2005), had not been made retroactive to cases on collateral review. Roberts did
not file a timely notice of appeal of this decision.
On July 21, 2008, Roberts filed a “Motion Seeking To Have The Court Correct
This Defendant’s Filing(s) Pursuant to Rule 10(e).” Roberts asked the District Court to
construe a June 2008 motion he had filed in his criminal case, United States v. Roberts,
D.C. Crim. No. 95-cr-00225, as a motion for permission to appeal the December 31, 2007
order. In an order entered on August 11, 2008, the District Court denied permission to
appeal, reasoning that Roberts had previously been granted permission to file an appeal
out of time in his criminal case for review of the order he had specified in the June 2008
motion, and he had given no reason whatever for why he should be granted permission to
appeal the December 31, 2007 order in his civil case.
Roberts filed a notice of appeal on August 18, 2008, seeking to appeal the District
Court’s August 11, 2008 decision. Our Clerk notified him that his appeal was subject to
summary disposition under Third Cir. LAR 27.4 and I.O.P. 10.6 and invited him to
submit argument in writing, an invitation he has declined.
We will summarily affirm the order of the District Court denying Roberts’
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“Motion Seeking To Have The Court Correct This Defendant’s Filing(s) Pursuant to Rule
10(e),” which was in effect a request for an extension of time to appeal. Under Third
Circuit LAR 27.4 and I.O.P. 10.6, we may summarily dispose of an appeal when it clearly
appears that no substantial question is presented by the appeal. We have jurisdiction
under 28 U.S.C. § 1291. The District Court's denial of an extension of time to appeal is
reviewed for an abuse of discretion. See Ramseur v. Beyer, 921 F.2d 504, 506 (3d Cir.
1990).
Roberts had 60 days, or until February 29, 2008, in which to file a notice of appeal
from the District Court’s December 31, 2007 order. Fed. R. App. Pro. 4(a)(1)(B). A
District Court may extend the time for appealing upon a showing of excusable neglect or
good cause, Fed. R. App. Pro. 4(a)(5)(A)(ii) (civil); Rule 4(b)(4) (criminal). Excusable
neglect is shown where the party seeking an extension demonstrates good faith and some
reasonable basis for not complying with the time limit specified in the rules. See
Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1312 (3d Cir. 1995).
In an order entered on April 15, 2008 in his criminal case, the District Court
denied a mandamus petition Roberts had filed. On June 18, 2008 Roberts filed a motion
in his criminal case, seeking permission to appeal the April 15 order. Just as the District
Court concluded, he made no reference whatever in this motion of any intention to appeal
4
the December 31, 2007 order entered in his civil case.1 He certainly could have done so
insofar as the District Court’s April 15 order specifically referenced the December 31,
2007 order disposing of his section 3582(c)(2) and Rule 52(b) motions. The District
Court thus did not abuse its discretion in denying Roberts an extension of time to appeal.
For the foregoing reasons, we will summarily affirm the order of the District Court
denying the “Motion Seeking To Have The Court Correct This Defendant’s Filing(s)
Pursuant to Rule 10(e).”
1
In the motion, Roberts stated: “Now Comes, Bruce Roberts, (Defendant) On this 12th
day of June, 2008, will respectfully move before this honorable court within a timely
fashion filing this Notice of Appeal from this court’s Order dated April 15, 2008.
Defendant request that this court take judicial notice that the defendant did not receive a
copy of this Order as of this date, and just received a copy ... on June 11, 2008.” See
Motion Seeking Permission To File Notice of Appeal, United States v. Roberts, D.C.
Crim. No. 95-cr-00225-2, Docket Entry No. 8.
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