UNITED STATES v. LLOYD (2020)

Sean Lloyd seeks to appeal the district court's order denying his 28 U.S.C. § 2255 motion. When the United States or its officer or agency is a party in a civil case, the notice of appeal must be filed no more than 60 days after the entry of the district court's final judgment or order, 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). “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007).

The district court entered its order denying Lloyd's § 2255 motion on January 27, 2020, thereby affording Lloyd until March 27, 2020, to file a notice of appeal. By letter dated April 15, 2020,^* Lloyd inquired whether the district court received his notice of appeal—which Lloyd claims he mailed on March 10, 2020—and expressing his concern that the court may not have received the notice because the COVID-19 pandemic has interrupted the prison mail system. Because Lloyd's April 15 filing presented an excuse for the untimeliness of his appeal and the filing was dated during the 30-day excusable neglect period, we construe the filing as a timely request for an extension of the appeal period. See Fed. R. App. P. 4(a)(5). Accordingly, we remand this case to the district court for the limited purpose of determining whether Lloyd has demonstrated excusable neglect or good cause warranting an extension of the appeal period. The record, as supplemented, will then be returned to this court for further consideration.

REMANDED

FOOTNOTES

FOOTNOTE.   See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (holding that a pro se prisoner's notice of appeal is considered filed the moment it is delivered to prison authorities for mailing to the court).

PER CURIAM:

Remanded by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.