UNITED STATES v. BISHOP (2021)

United States Court of Appeals, Seventh Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Edward BISHOP, Defendant-Appellant.

No. 21-1871

Decided: July 20, 2021

Before Diane S. Sykes, Chief Judge Frank H. Easterbrook, Circuit Judge Michael Y. Scudder, Circuit Judge Joel Gabrielse, Attorney, Office of the United States Attorney, South Bend, IN, for Plaintiff - Appellee. Edward Bishop, Milan, MI, Pro Se.

Order

Edward Bishop sought compassionate release from prison, see 18 U.S.C. § 3582(c)(1), and the district court denied that motion on April 12, 2021. Bishop had until April 26 to appeal or seek reconsideration. He did neither, though he did seek reconsideration on April 30 (or April 28, per the prison-mailbox rule). The district court denied that request on May 5, and Bishop appealed on May 11.

The appeal is untimely. The United States has elected to stand on its right to have an untimely appeal dismissed, even in a criminal case.

Although the appeal might be deemed timely with respect to the order of May 5, the motion of April 30 (or April 28) was ineffectual. In civil cases, an untimely request for reconsideration can be treated as a motion under Fed. R. Civ. P. 60(b). The Rules of Criminal Procedure do not have an equivalent provision. The document that Bishop filed in late April might perhaps be understood as a new request for compassionate release, but that request would have been doomed by his failure to exhaust administrative remedies before restarting the process. It seems best to treat the late-April document as irrelevant to appellate jurisdiction and to dismiss the appeal as untimely.