United States of America v. Lack, 487 U.S. 266, 276 1988

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6102
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL J. CONCESSI,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (CR-01-60; CA-03-320-2)
Submitted: August 25, 2004 Decided: September 23, 2004
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
Remanded by unpublished per curiam opinion.
Michael J. Concessi, Appellant Pro Se. Alan Mark Salsbury,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

-- 1 of 3 --

1Because Concessi was in prison, we construe the date he
executed his notice of appeal as the earliest date on which it can
be considered filed. See Houston v. Lack, 487 U.S. 266, 276
(1988); Fed. R. App. P. 4(c).
- 2 -
PER CURIAM:
Michael J. Concessi seeks to appeal the district court’s
denial of his 28 U.S.C. § 2255 (2000) motion. In civil actions in
which the United States or an officer or agency thereof is a party,
all parties are accorded sixty days after entry of the district
court’s final judgment or order to note an appeal, see Fed. R. App.
P. 4(a)(1)(B), unless the district court extends the appeal period
under Fed. R. App. P. 4(a)(5) or reopens the appeal period under
Fed. R. App. P. 4(a)(6). These time periods “are mandatory and
jurisdictional.” Browder v. Director, Dep’t of Corr., 434 U.S.
257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220,
229 (1960)).
The district court’s order denying Concessi’s motion was
entered on October 30, 2003. Concessi’s notice of appeal was dated
December 30, 2003, one day outside the sixty-day appeal period.1
Along with his notice of appeal, Concessi submitted a letter that
appears to argue that he had good cause for his late filing. We
construe Concessi’s letter as a motion to extend the appeal period
under Rule 4(a)(5). See Washington v. Bumgarner, 882 F.2d 899, 901
(4th Cir. 1989); Myers v. Stephenson, 781 F.2d 1036, 1038-39 (4th
Cir. 1986). Accordingly, we remand the case to the district court

-- 2 of 3 --

2We express no opinion whether Concessi has made the requisite
showing under Rule 4(a)(5).
- 3 -
to determine whether Concessi has shown excusable neglect or good
cause to warrant an extension of the appeal period. 2 The record,
as supplemented, will then be returned to this court for further
consideration.
REMANDED

-- 3 of 3 --