United States District Court, E.D. Kentucky, Southern Division, London
C. REEVES UNITED STATES DISTRICT JUDGE.
Michael Huffman pleaded guilty to robbery of a controlled
substance in violation of 18 U.S.C. § 2118(a) and
possession with intent to distribute oxycodone and
hydrocodone in violation of 21 U.S.C. § 841(a)(1).
[Record No. 56] He was sentenced to 115 months imprisonment
and a 3-year term of supervised release. [Id.] It
was reported that the defendant violated the terms of his
supervised release in June 2018. [Record Nos. 97, 99]
Lucas Joyner was appointed to represent Huffman on his
alleged supervised release violations. [Record No. 131-1] The
Court found that the defendant violated the terms of his
supervised release and he was sentenced to twenty-four months
imprisonment and a ten-year term of supervised release on
June 28, 2018. [Record Nos. 103, 105] A judgment was entered
on June 29, 2018. [Id.]
defendant spoke to attorney Joyner about possibly appealing
after the hearing on June 28, 2018, but said that he felt
rushed during the conversation. [Record No. 131-2] Huffman
spoke to Joyner again on July 2, 2018, and learned that the
chances of a successful appeal were not good. [Id.]
Huffman believed that Joyner would provide him more
information about his option to appeal, but Joyner explained
that Huffman clearly stated that he did not wish to appeal
the judgment. [Record Nos. 131-1; 131-2]
days after the meeting, Huffman called Joyner's office
but could not get in touch with anyone. [Record No. 131-2]
Huffman also asked his wife to try and reach Joyner to
instruct him to file a Notice of Appeal. [Id.]
Joyner explained that he was out of the office from July 5-8,
2018, and from July 17-23, 2018. [Record No. 131-1] Joiner
also noted that his office had issues with its phone system
and internet service throughout the month of July.
was contacted by Huffman's wife on July 16, 2018, about
filing an appeal for the defendant. Joyner, however,
explained that the time to appeal had expired. After Joyner
returned from vacation on July 23, 2018, Huffman got in touch
with him and told him that he had been trying to contact him
for a few weeks about filing a Notice of Appeal. [Record No.
131-1] Joyner explained that he was on vacation, his phone
system was down, and told him to file a Notice of Appeal on
his own. [Id.]
filed an untimely Notice of Appeal on August 2, 2018, which
was docketed on August 6, 2018. [Record No. 106] He asserted
that he told his attorney he wanted to file an appeal, but
later learned that the filing was not made. [Id.]
The government moved to dismiss the appeal as untimely. The
United States Court of Appeals for the Sixth Circuit remanded
this matter for the limited purpose of determining whether
excusable neglect is present. [Record No. 124] The defendant
provided sworn affidavits from himself and Joyner, to support
a finding of excusable neglect. [Records Nos. 131-1; 131-2]
The United States failed to respond.
Notice of Appeal in a criminal case must be filed by a
defendant in the district court within 14 days of the entry
of judgment. Fed. R. App. P. 4(b)(1)(A). The Court may extend
the time to file a Notice of Appeal upon a finding of
excusable neglect or good cause for a period not to exceed 30
days from the expiration of the time otherwise set forth in
the rule. Fed. R. App. P. 4(b)(4).
neglect includes faultless omissions and omissions caused by
carelessness. Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P'ship, 507 U.S. 380, 388 (1993). To
determine whether excusable neglect exists the Court
“weighs all relevant circumstances including the danger
of prejudice to the other party, the length of the delay and
its effect on the judicial proceeding, the reason for the
delay and whether it was within the moving party's
control, and whether the moving party acted in good
faith.” Jackson v. Chandler, 463 Fed.Appx.
511, 513 (6th Cir. 2012) (citing Pioneer Inv. Servs.
Co., 507 U.S. at 395) (internal quotations omitted).
However, the factors do not carry equal weight, the reason
for the delay is the most important. See United States v.
Munoz, 605, F.3d 359, 372 (6th Cir. 2010). A client is
usually responsible for his counsel's failures, but this
rule is “applied less stringently in the criminal
context.” See Pioneer, 507 U.S. at 396-97;
Munoz, 605 F.3d at 369.
timely Notice of Appeal should have been filed on or before
July 13, 2018, but Huffman did not send his Notice of Appeal
until August 2, 2018. There is only a seventeen-day delay,
which is well within the thirty-day window to extend the
deadline to file a Notice of Appeal. Further, there does not
appear to be bad faith. Huffman explained that he repeatedly
tried to contact his attorney to file a Notice of Appeal and
filed a pro se Notice of Appeal after the deadline
as his attorney instructed. Additionally, it does not appear
that the government would be prejudiced by the delay as
demonstrated by the government's failure to file a
response to the defendant's brief.
the reason for the delay supports a finding of excusable
neglect. A defendant not being able to get in touch with his
attorney to tell him to file a Notice of Appeal can
constitute excusable neglect. For example, the United States
Court of Appeals for the Seventh Circuit concluded that it
was not an abuse of discretion for the district court to find
excusable neglect when the defendant explained that his
attorney's absence and inaccessibility during the appeal
period prevented him from telling his attorney to file an
appeal. United States v. McKenzie, 13');">99 F.3d 813,
815-16 (7th Cir. 1996). Additionally, the United States Court
of Appeals for the Ninth Circuit concluded that when a
defendant and his attorney attempted to contact each other
regarding whether to file a notice of appeal, but had trouble
locating each other since the defendant moved prisons
multiple times, there was no abuse of discretion in finding
excusable neglect. United States v. Smith, 60 F.3d
595, 596 (9th Cir. 1995); see also United States v.
Houser, 804 F.2d 565, 569 (9th Cir. 1986).
the defendant explained that he kept trying to get in touch
with his attorney to file a Notice of Appeal, but could not
reach him. [Record No. 131-2] Huffman asked his wife to
contact his attorney while he was incarcerated.
[Id.] His lawyer explained that he had been on
vacation and there had been an issue with his office
telephone and internet. [Record No. 131-1, p. 1] Joyner noted
that he heard from Huffman's wife after the time to file
a Notice of Appeal had run. Joyner finally got in touch with
Huffman after he returned from vacation and instructed
Huffman on how to file a Notice of Appeal.
the defendant repeatedly attempted to get in touch with his
attorney to file a Notice of Appeal before the time expired,
the Court finds that excusable neglect exists.
there is no evidence of bad faith, there is minimal prejudice
to the government, and the length of the delay is ...