US v. Johnny Joseph, No. 10-7599 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7599 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JOHNNY JOSEPH, a/k/a Joe Sanders, Defendant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 Vacated and remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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. was unsigned. The district court returned the motion as it 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 appealability. an appeal and a request for a certificate of 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. 2 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. the district In his informal brief, Joseph asserts that 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. 4(a)(1)(B), 4(b)(1)(A). Joseph s motion See Fed. R. App. P. 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. 3 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 Joseph s order of the district court denying 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. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. VACATED AND REMANDED 4
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