17 F. 3d 1435 - United States v. Buttler G Whittingham

Gregory Buttler appeals from the district court's denial of relief on his 28 U.S.C. Sec. 2255 (1988) motion. This notice of appeal is technically late under Fed. R.App. P. 4(a)(1). However, Rule 4(a)(6) provides that the district court may, in its discretion, order the appeal period reopened for fourteen days, if it appears that the party seeking to appeal did not receive notice of the entry of judgment within twenty-one days of its entry, and if no party would be prejudiced.

Here, the district court's order and memorandum denying relief were entered on October 21, 1992. Buttler was transferred from a federal facility in Talladega, Alabama to one located in Atlanta, Georgia at some point during these proceedings, and did not receive a copy of the order within the appeal period established by Rule 4(a)(1). On December 8, 1992 and again on March 9, 1993, Buttler wrote to the district court requesting an update on the status of his Sec. 2255 motion. The court responded to the March letter by sending copies of the order and memorandum to Buttler's Atlanta address. Buttler filed the present notice of appeal fourteen days later.

Given the course of events below, we construe Buttler's letters to the district court as motions to reopen the period for appeal, as provided by Rule 4(a)(6), and remand this case to the district court for a determination of whether such an extension of time is warranted. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.