United States v. Heard

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-30026
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL O’SHEA HEARD,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
(98-CR-30011-1)
_________________________
December 7, 2000
Before POLITZ, SMITH, and PARKER,
Circuit Judges.
PER CURIAM:*
Michael Heard was sentenced on October
20, 1999, and the court entered the judgment
on October 26, 1999. The court appointed an
attorney on October 25, 1999. Heard filed no
motions or notices of appeal after the entry of
the judgment until December 21, 1999. The
district court granted his motion for out-of-
time appeal on January 3, 2000, and Heard
filed his appeal that day.
I.
“A timely notice of appeal . . . is a pre-
requisite to our exercise of jurisdiction.” Unit-
ed States v. Winn, 948 F.2d 145, 153 (5th Cir.
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
47.5.4.

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2
1991). Under FED. R. APP. P. 4(b), a de-
fendant has ten days after the entry of the
judgment being appealed to file his notice of
appeal. Rule 4(b)(4) allows a district court to
extend the time for filing for an additional thir-
ty days if it finds “excusable neglect” or “good
cause.”
Heard waited over forty days to move for
an out-of-time appeal. In United States v.
Awalt, 728 F.2d 704, 705 (5th Cir. 1984), we
held that “[c]ourts cannot extend the time pe-
riod beyond the forty-day time period
prescribed by Rule 4(b).” A “late notice or
some other filing evidencing an intention to
appeal must be filed within the forty-day
period.” Id.
II.
We have treated the appointment of counsel
as the equivalent of the grant of an out-of-time
appeal. See United States v. Lister, 53 F.3d
66 (5th Cir. 1995); United States v. Quimby,
636 F.2d 86 (5th Cir. Unit A Feb. 1981). In
Quimby, this court treated the district court’s
authorization for defendant to proceed in
forma pauperis on appeal twelve days after the
entry of judgment as a finding of excusable
neglect. 636 F.2d at 89. Lister extended this
reasoning to find a court’s ruling on
defendant’s motion for appointment of sub-
stitute appellate counsel tantamount to a find-
ing of excusable neglect. 52 F.3d at 68.
Even this liberal construction, however,
does not assist Heard. Both Quimby and Lis-
ter filed their notices of appeal within the
forty-day limit. Heard filed no motion within
this time, and Awalt plainly indicates that some
filing within the forty-day period is necessary
for the court even to consider extending the
time for excusable neglect. Thus, the district
court erred in granting the motion for out-of-
time appeal.
Even if the time for filing a motion for out-
of-time appeal had expired, the district court
could have granted an appeal pursuant to 28
U.S.C. § 2255.2 See Mack v. Smith, 659 F.2d
23, 25-26 (Former 5th Cir. Oct. 1981). Cases
in which § 2255 motions have essentially al-
lowed out-of-time appeals generally allege in-
effective assistance of counsel. See, e.g., Unit-
ed States v. Lankford, 196 F.3d 563, 569 (5th
Cir. 1999), cert. denied, 120 S. Ct. 1984
(2000); United States v. Clark, 193 F.3d 845,
846 (5th Cir. 1999); Barrientos v. United
States, 668 F.2d 838, 842 (5th Cir. 1982);
Mack, 659 F.2d at 25. There is no allegation
of ineffective assistance.
Therefore, because Heard failed to file any
motion or notice of appeal within the forty-day
period afforded by the extension, we find no
ground on which the district court properly
could base its motion to grant an out-of-time
appeal. We therefore DISMISS the appeal for
want of jurisdiction.
2 The relevant portion of the statute reads:
If the court finds . . . that there has been
such a denial or infringement of the
constitutional rights of the prisoner as to
render the judgment vulnerable to collateral
attack, the court shall vacate and set the
judgment aside and shall discharge the
prisoner or resentence him or grant a new
trial or correct the sentence as may appear
appropriate.

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