Summary
opining that delay "was not within the [defendant's] control" where defendant "did not file the appeal [on time] because he was placed in segregation"
Summary of this case from United States v. DarlingOpinion
Docket No. 2:04 CR 20115.
June 26, 2006
MEMORANDUM RULING
The final judgment being appealed by the defendant was entered by the court on February 28, 2006. In response to this judgment, the defendant filed a notice of appeal which is dated February 24, 2006 and stamped as filed by the court on March 17, 2006. Because the Fifth Circuit was unable to determine whether the notice of appeal was timely filed, this matter was remanded by the Fifth Circuit for the purpose of having this court make a factual determination regarding the date on which defendant delivered his notice of appeal to the prison officials. The defendant was given a copy of the ruling by the Fifth Circuit and was given the opportunity to introduce evidence of the date the notice of appeal was mailed. No evidence verifying the mailing date has been provided by the defendant.
In the absence of proof that the notice of appeal was timely filed, the defendant was instructed to file evidence of excusable neglect. In response, the defendant sent a letter to the court stating that after his sentencing, he was moved to Beaumont, where upon the instruction of the U.S. Marshal, he was placed in segregation and was unable to mail his notice within ten days.
See United States v. Clark, 51 F.3d 42, 43 n. 5 (5th Cir. 1995) (setting forth the standard for review of excusable-neglect finding); Leggett v. Sanders, 2000 WL 959877, *1 (C.A.5 (Tex. (C.A.5 (Tex.), 2000).
In Clark, the Fifth Circuit held that the Supreme Court's decision in Pioneer Inv. Services, Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) abrogated this Circuit's prior case law strictly interpreting excusable neglect. In Pioneer, the Supreme Court flexibly interpreted the excusable neglect standard of Bankruptcy Rule 9006(b)(1), which allows a bankruptcy court to permit a late filing of proofs of claim if the movant's failure to comply with an earlier deadline was the result of excusable neglect. The Court rejected the argument that excusable neglect was limited to errors caused by circumstances beyond the late-filing party's control, concluding that the concept of neglect is "somewhat elastic" and may include "inadvertent delays." Pioneer, 507 U.S. at ___, 113 S.Ct. at 1496. The Court was careful to note, however, that "inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute 'excusable' neglect. . . ." Id. In determining whether a party's neglect is excusable, the Court emphasized the equitable nature of the inquiry, which takes into account the following circumstances: "the danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Id. at ___, 113 S.Ct. at 1498.
See, e.g., Allied Steel v. City of Abilene, 909 F.2d 139, 142 (5th Cir. 1990); Campbell v. Bowlin, 724 F.2d 484, 486-88 (5th Cir. 1984).
In United States v. Evbuomwan, No. 93-1738 at 4 (5th Cir. Sept. 8, 1994), reported at 36 F.3d 89 (5th Cir. 1994) (table), an unpublished opinion, the Fifth Circuit held that Pioneer applies to a Rule 4(b) finding of excusable neglect. The Fifth Circuit also noted the uniformity of the Circuits in extending Pioneer beyond the context of bankruptcy.
See City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994) (Fed.R.App.P. 4(a)), cert. denied, 513 U.S. 1191, 115 S.Ct. 1254, 131 L.Ed.2d 135 (1995); Kyle v. Campbell Soup Co., 28 F.3d 928, 931 (9th Cir.) (Fed.R.Civ.P. 6(b)), cert. denied, 513 U.S. 867, 115 S.Ct. 185, 130 L.Ed.2d 119 (1994); Weinstock v. Cleary, Gottlieb, Steen Hamilton, 16 F.3d 501, 503 (2nd Cir. 1994) (Fed.R.App.P. 4(a)).
The Fifth Circuit recognized before Pioneer that, "under proper circumstances," Rule 4(b)'s excusable neglect provision encompasses "ignorance or neglect of counsel in filing late notices of appeal." Pioneer allows more room for judgment in determining whether mistakes of law are excusable than does the strict standard for excusable neglect espoused by some prior decisions.
United States v. Lewis, 522 F.2d 1367, 1369 (5th Cir. 1975).
See, e.g., Allied Steel, 909 F.2d at 142. We recognized Pioneer's flexibility in Evbuomwan.
In applying the Pioneer factors to the facts of this case, there is a danger of prejudice to defendant if the late notice of appeal is not accepted by the court. The length of any delay arising from an appeal would not have a prejudicial impact on judicial proceedings, as it is the final judgment that is being appealed. The defendant did not file the appeal because he was placed in segregation, a decision that was not within the inmate's control. There is no indication that the defendant did not act in good faith. Accordingly, this court finds excusable neglect, will permit the defendant to file his appeal, and will return this case to the Fifth Circuit for further proceedings.