US v. William Smalls, No. 14-7212 (4th Cir. 2014)

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The court issued a subsequent related opinion or order on July 1, 2015.

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-7212 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. WILLIAM ISAAC SMALLS, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:10-cr-00008-MR-1; 1:12-cv-00286-MR) Submitted: December 16, 2014 Decided: December 30, 2014 Before GREGORY and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Remanded by unpublished per curiam opinion. William Isaac Smalls, Appellant Pro Se. Donald David Gast, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: William court’s order Isaac denying Smalls relief seeks on his to appeal motion the under district 28 U.S.C. § 2255 (2012). In a civil case in which the United States or its agency officer or is a party, parties have sixty days following the entry of the district court’s final judgment or order in which to file a notice of appeal. 4(a)(1)(B). Fed. R. App. P. However, if a party moves for an extension of time to appeal within thirty days after expiration of the original appeal period and demonstrates excusable neglect or good cause, a district court may extend the time to file a notice of appeal. Fed. R. App. P. 4(a)(5)(A); Washington v. Bumgarner, 882 F.2d 899, 900-01 (4th Cir. 1989). Smalls’ notice of appeal was received in the district court after the expiration of the sixty-day appeal period but within the thirty-day excusable neglect period. of appeal, Smalls requested an extension of In his notice time to appeal because he was in transit when the district court served him with notice of its judgment and he did not receive it until after the sixty-day appeal period expired. Smalls’ notice of appeal should pursuant to Rule 4(a)(5)(A). the district court for the be We conclude that construed as a motion Accordingly, we remand the case to limited purpose of determining whether Smalls has demonstrated excusable neglect or good cause 2 warranting an extension of the sixty-day appeal period. The record, as supplemented, will then be returned to this court for further consideration. REMANDED 3