USA v. Grimes

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JEFFREY J. GRIMES,
Defendant.
CR. 11-50029-JLV
ORDER
On June 4, 2021, pursuant to Fed. R. App. P. 4(b)(4) the court granted
Defendant Jeffrey Grimes’ motion to extend the time to file an appeal to the
United States Court of Appeals for the Eighth Circuit. (Docket 164). The
order extended the deadline for filing an appeal in this criminal case to June
11, 2021, pursuant to Fed. R. App. P. 4(b)(4). Id. at p. 2.
On June 15, 2021, Alecia Fuller, Assistant Federal Public Defender, as
counsel for Mr. Grimes filed a motion for leave to file an appeal out-of-time.
(Docket 165). Ms. Fuller asserts she was unable to communicate with Mr.
Grimes until June 15, 2021. Id. at p. 1. Defendant’s motion asserts Mr.
Grimes “filed his own appeal pro se on May 26, 2021 by placing the same in
the United States mail at USP Thomson in Thomson, Illinois, where the
Defendant is presently incarcerated, addressed to the clerk of courts, 515
Ninth Street, Rapid City, South Dakota.” Id. Because the defendant’s pro se
appeal had not yet been received by the Clerk of Court, Ms. Fuller asks leave of
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the court to file defendant’s “Notice of Appeal through counsel and his appeal
be accepted and docketed by the clerk of courts.” Id. at p. 2. As of the date of
this order, Mr. Grimes’ pro se notice of appeal and declaration or notarized
statement required by Fed. R. App. P. 4(c)(1) have not be filed.
“Unlike Federal Rule of Appellate Procedure 4(a), Rule 4(b) is not
grounded in statute and is set forth only in a court-prescribed rule of appellate
procedure. Court-prescribed rules of practice and procedure, as opposed to
statutory time limits, do not create or withdraw federal jurisdiction.” United
States v. Watson, 623 F.3d 542, 545 (8th Cir. 2010) (internal quotation marks
and citation omitted). “Rule 4(b) is thus a claim-processing rule . . . . In
accordance with all other circuits that have considered the issue, we hold that
Rule 4(b) is not jurisdictional.”). Id. at 545-46 (internal citations omitted). See
also United States v. Whitbeck, 869 F.3d 618, 619 (8th Cir. 2017) (“The time
limit on criminal appeals is a claims-processing rule[.]”) (referencing Watson,
623 F.3d at 545-46).
Even though Rule 4(b)(4) “time constraints are not jurisdictional
limitations, ‘Rule 4(b)’s timeliness requirements [are] inflexible and assure relief
to a party properly raising them.’ ” United States v. Starks, 840 F.3d 960 (8th
Cir. 2016) (brackets in original) (citing Watson, 623 F.3d at 546). The question
is whether the government intends to object to Mr. Grimes’ present motion or
“waive its right to the enforcement of a nonjurisdictional claim-processing
rule.” Watson, 623 F.3d at 545.
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Accordingly, it is
ORDERED that the government shall file its response to the
defendant’s motion (Docket 165) on or before June 30, 2021.
Dated June 23, 2021.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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