Tag Archives: FRAP 4

7th Circuit Says Courts Should Look for Reason to Accept Late-Filed Notice of Appeal – Update for July 20, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BETTER LATE THAN NEVER

Incarcerated pro se litigants generally figure that just about any filing deadline can be extended. And judicial devices like the prison mailbox rule – that provides that a document is filed with a federal court on the day it is deposited in institution legal mail – contribute to the false sense of security that deadlines are more suggestions than mandates.

Mostly this is true. Courts are generally very indulgent of pro se filings that are a few days late. But a few deadlines are not easily overlooked by the courts. One is the deadline set for filing 28 USC § 2255 motions, a deadline fixed by statute that courts cannot extend. Another is the deadline for filing a notice of appeal (NOA) under Federal Rule of Appellate Procedure Rule 4.

Rule 4 sets varying deadlines for filing NOAs depending on whether the claim is civil or criminal and whether the litigation included a government party. There are other twists: anyone would think that a 2255 motion challenging a conviction is a criminal matter with a short-fuse 14-day deadline for filing an NOA. But it’s not: habeas corpus is a civil action, even when it challenges a criminal conviction, so a 2255 NOA would be subject to the 30-day filing deadline under F.R.App.P. 4(a).

But it’s not. Because a habeas corpus necessarily includes the government (or one if its officials or employees) as an adverse party, F.R.App.P. 4(a) extends the deadline for filing a § 2255 or § 2241 NOA to 60 days.

The lax, prisoner-friendly deadlines of F.R.App.P. 4(a) make it easy to forget that in appealing a compassionate release motion under 18 USC 3582(c)(1), a prisoner is appealing a holding in a criminal case. Thus, the NOA deadline is a miserly 14 days under F.R.App.P. 4(b).

John Carter forgot. After his compassionate release was denied, he filed his NOA 21 days later, a week past the deadline. The government moved to dismiss his appeal.

F.R.App.P. 4(b)(4) contains a safety valve for people like John. It permits a district court to grant an extension of not more than 30 days after the original NOA due date. But John never filed an extension request, so he seemed to be out of luck.

Not so, the 7th Circuit said last week. Instead, while the Circuit “encourage[s] litigants to file a motion to present their best arguments for an extension,” it ruled that “considering the plain text of Rule 4(b)(4) (and recognizing that most untimely notices of appeal in criminal cases are filed by unsophisticated pro se prisoners)… if a notice of appeal is filed in a criminal case within Rule 4(b)(4)’s 30-day extension window, we should not dismiss the appeal until the district judge has made a finding on whether an extension of time is justified, even when the appellant has not filed a motion.”

The 7th’s holding joins a consensus among six other circuits that filing within the 30-day window triggers the district court’s obligation to determine whether there is good cause or excusable neglect for late filing. Of course, unless the prisoner files a motion explaining why the NOA was late, it is pretty hard for the district judge to make a favorable finding.

The best idea is to file on time. The next best idea is to file a motion justifying why the NOA is late.

United States v. Carter, Case No. 26-1406, 2026 U.S.App. LEXIS 21212 (7th Cir. July 17, 2026)

~ Thomas L. Root

Benefit of the Dout – Update for December 2, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

6TH CIRCUIT CUTS INMATE FILER A BREAK ON CONFUSING PLEADING

cutbreak221201Eighty-three days after his judge denied his 28 U.S.C. § 2255 motion, Joe Reho filed something with the district court. It may have been a motion for an extension of time to apply for a certificate of appealability. It may have been a notice of appeal. No one was quite sure what it was, but everyone was quite sure it was written without the benefit of a dictionary nearby.

The district court decided it must be a notice of appeal and dismissed it as being 23 days late.

Last week, the 6th Circuit remanded the case, concluding that Joe’s motion, which repeatedly asked for an extension of time, “is better construed as a motion for extension of time to file a notice of appeal.”

grammar221201Under Rule 4(b)(4) of the Federal Rules of Appellate Procedure, district court may extend the time to file a notice of appeal based on “excusable neglect or good cause” if an extension is filed within 30 days after the notice of appeal due date. Here, Circuit said, construing Joe’s “filing liberally, we conclude that he moved for an extension of time to file a notice of appeal. While the district court docketed the document as a notice of appeal, Joe’s motion requested, in the opening paragraph, ‘a extention of time to filed a certificate of Appealability… and to proceed inform a peuperis on appeal.”

CantSpell221201“This court construes pro se habeas petitions liberally,” the 6th held, apparently even where spelling and grammar are butchered. “For instance, we regularly construe notices of appeal as applications for a certificate of appealability… We have also construed motions for extension of time as notices of appeal… Repo’s motion appears to ask for an extension to apply for a certificate of appealability rather than for an extension to file a notice of appeal. But his motion is a far cry from the simple notices of appeal that we have refused to construe as motions for extension… Repo’s motion reads as a motion for extension of time to file a notice of appeal and will be treated as such.”

Reho v. United States, Case No 22-3784, 2022 U.S.App. LEXIS 31392 (6th Cir., Nov. 14, 2022)

– Thomas L. Root

‘You May Be Sick, But You’re Still a Bad Guy’ – Update for November 5, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

A COUPLE OF NOTES ABOUT COMPASSIONATE RELEASE…

Two decisions last week delivered some handy reminders to people seeking “compassionate release” sentence reductions under 18 USC § 3582(c)(1)(A)(i) that (1) a defendant’s being sick or prone to get sick is not the only concern of the judge; and (2) there are procedural pitfalls for the unwary.

death200330By now, everyone knows that you have to show “extraordinary and compelling” reasons warranting a sentence reduction. These days, such reasons are usually (but not always) that you have medical conditions that puts you at risk for catching COVID (although a variety of reasons from medical to questions of fairness have supported compassionate release in the two years since defendants first got the right to bring the motions themselves in the First Step Act).

But “extraordinary and compelling” is just part of the showing you have to make. The statute also requires that the court consider the “sentencing factors” of 18 USC § 3553(a). And whether the factors favor grant of your motion is almost solely the judge’s call.

The factors are framed in such terms as consideration of “the nature and circumstances of the offense and the history and characteristics of the defendant” and “the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to provide adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with education, training, medical care, or other treatment.” But what it all comes down to whether the judge thinks the defendant has been locked up long enough.

Keith Ruffin filed a motion with his sentencing court for compassionate release, arguing that his heart problems, high blood pressure, high cholesterol, and blood clots, put him more at risk for COVID. These are all pretty good reasons, according to the Centers for Disease Control and Prevention. But his sentencing judge disagreed that his health concerns were “extraordinary and compelling reasons” for relief, and held that even if they were,  the § 3553(a) sentencing factors argued against a sentence reduction.

lockedup201105Last week, the 6th Circuit upheld denial of Keith’s compassionate release motion. It ignored Keith’s solid argument that the district court had erred in holding that because Keith could currently manage his health conditions, his risk factors were not extraordinary and compelling reasons for compassionate release. Instead, the court said, the district court is pretty much all there is in deciding that cutting Keith loose was inconsistent with the 3553(a) factors.

“These ubiquitous factors,” the Circuit said, “consider such things as the characteristics of the defendant, the nature of the offense, and various penological goals, such as the need to promote respect for law and to protect the public. This last requirement confirms an overarching point: The district court has substantial discretion. The statute says that the district court “may” reduce a sentence if it finds the first two requirements met; it does not say that the district court must do so. Even if those conditions are met, therefore, a district court may still deny relief if it finds that the “applicable” 3553(a) factors do not justify it. And in a reduction-of-sentence proceeding, as at sentencing, the district court is best situated to balance the § 3553(a) factors.”

A district court might abuse its discretion, the 6th said, if its denial was based on a purely legal mistake (such as a misreading the extraordinary-and-compelling-reasons requirement) or if it engaged in a substantively unreasonable balancing of the § 3553(a) factors. Here, the district court considered the amount of time served, his somewhat uneven prison record as evidence of the extent of rehabilitation, and the fact Keith had committed his crimes while suffering from the same health concerns he now relied on to justify compassionate release.

In another case, Art Payton’s compassionate release motion was denied by his sentencing court last July 24th. He filed a notice of appeal on August 10th, 17 days later. Last week, the 6th Circuit dismissed his appeal.

timewaits200325The deadline for an appeal in a civil case is at least 30 days after the final order is issued (and can be more in some cases). But a motion under 18 USC § 3582(c)(1)(A)(i) is a continuation of a criminal case, and thus is subject to the 14-day deadline set out in Fed.R.App.P. 4(b)(1).

Rule 4(b)(4) authorizes the district court to extend the time in which a party may appeal for up to 30 days from the end of the fourteen-day appeal period provided in F.R.App.P 4(b)(1)(A). However, the court must find “good cause” or “excusable neglect” for the failure to timely file a notice of appeal.

The Court sent the case back to the district court to determine whether Art’s excuse – that the prison has been “on an institution-wide lockdown and getting copies in this environment is problematic” – should allow him to file a belated appeal.

United States v. Ruffin, Case No. 20-5748, 2020 U.S. App. LEXIS 33689 (6th Cir Oct 26, 2020)

United States v. Payton, Case No 20-1811, 2020 U.S. App. LEXIS 33965 (6th Cir Oct 28, 2020)

– Thomas L. Root