United States of America, Plaintiff-appellee, v. Abdul Saiyed, Defendant-appellant.united States of America, Plaintiff-appellee, v. Abdul Saiyed, Defendant-appellant, 944 F.2d 903 (4th Cir. 1991)Annotate this Case
Submitted Aug. 1, 1991. Decided Sept. 23, 1991
Appeals from the United States District Court for the District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CR-86-19-S; CA-91-344-S)
Abdul Saiyed, appellant pro se.
Susan Moss Ringler, Catherine Curtis Blake, Office of the United States Attorney, Baltimore, Md., for appellee.
Before WIDENER and K.K. HALL, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Abdul Saiyed, a federal prisoner, filed a petition in the district court challenging his conviction and sentence on drug charges and seeking an evidentiary hearing and production of documents. The district court denied the petition on February 26, 1991. Saiyed then moved for reconsideration of the denial of his motion for production of documents under Fed. R. Civ. P. 60(b). The court denied the motion in a marginal order on March 11, 1991. Saiyed filed a notice of appeal dated May 15, 1991, in which he contended that he did not receive a copy of the district court's order denying the motion for reconsideration until May 6, 1991;* the appeal of this order is the subject of 91-7132. The district court denied an extension of time to appeal in a marginal order. Saiyed appealed the denial of an extension in 91-7133.
Saiyed's first notice of appeal was not filed within the 60-day appeal period provided in Fed. R. App. P. 4(a) (1). However, it was filed within the 30-day excusable neglect period provided in Fed. R. App. P. 4(a) (5). In support of his motion for extension of time, Saiyed stated that he did not receive a copy of the order denying the motion until May 6, 1991. However, failure to receive a copy of the district court's order is not a basis for extending the time in which to file a notice of appeal. Fed. R. Civ. P. 77(d). Therefore, we deny leave to proceed in forma pauperis and dismiss the appeal in 91-7132 for lack of jurisdiction. Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978). Further, because the reason stated by Saiyed for the untimeliness of his notice of appeal was not a valid one, especially in light of his failure to keep the court apprised of his whereabouts, the court did not abuse its discretion in denying the motion. See Fed. R. Civ. P. 77(d); United States v. Breit, 754 F.2d 526, 528-29 (4th Cir. 1985) (excusable neglect determination reviewed for abuse of discretion). Consequently, we deny leave to appeal in forma pauperis and dismiss the appeal in 91-7133.
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not significantly aid the decisional process.
The docket sheet reflects that the order was mailed to the parties on March 11. Saiyed apparently did not receive a copy of the order at that time because he was transferred while the motion was pending and he failed to keep the court informed of his correct address