James v. United States, 459 U.S. 1044 (1982). · Go Syfert
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James v. United States, 459 U.S. 1044 (1982). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases · …the jury can find expert testimony adequately rebutted by the observations of laymen Topic ↗
222 citation events (10 in the last 25 years) across 51 distinct courts.
Strongest positive: Morris v. State (alacrimapp, 2010-02-05) · Strongest negative: United States v. Francis Floyd Ant (ca9, 1989-08-09)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 44 distinct citers.
discussed Cited "but see" United States v. Francis Floyd Ant (2×)
9th Cir. · 1989 · signal: but see · confidence high
But see United States v. Fleishman, 684 F.2d 1329, 1346 (9th Cir.) (in a drug case, sentencing judge's consideration of prior uncounseled Mexican convictions on drug charges was not error when judge was aware of the constitutional infirmities of the prior convictions and enhanced the sentence, not because of the convictions, but because the defendants "had been involved in drug-related offenses and had not learned from their experiences"), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982) 8 The dissent states that "we simply are not willing to treat tribal courts with the sam…
discussed Cited as authority (quoted) Morris v. State
Ala. Crim. App. · 2010 · quote attribution · 1 verbatim quote · confidence low
the jury can find expert testimony adequately rebutted by the observations of laymen
examined Cited as authority (quoted) Franklin v. Duncan
N.D. Cal. · 1995 · signal: cf. · quote attribution · 1 verbatim quote · confidence low
as long as police do nothing to direct or control or involve themselves in the questioning of a person in custody by a private citizen, such questioning does not violate the fifth or sixth amendments.
discussed Cited as authority (quoted) Lackey v. State
Ala. Crim. App. · 1992 · quote attribution · 1 verbatim quote · confidence low
the jury can find expert testimony adequately rebutted by the observations of laymen
discussed Cited as authority (quoted) Ellis v. State
Ala. Crim. App. · 1990 · quote attribution · 1 verbatim quote · confidence low
the jury can find expert testimony adequately rebutted by the observations of laymen
discussed Cited "see" United States v. Diana Gonzales Buchanan, Fedell Anderson, Vernon Bonner, and John Buchanan
5th Cir. · 1996 · signal: see · confidence high
In situations such as the present case, “The rule is well-established that an experienced narcotics agent may testify about the significance of certain conduct or methods of operation unique to the drug distribution business, as such testimony is often helpful in assisting the trier of fact understand the evidence.” United States v. Washington, 44 F.3d 1271, 1283 (5th Cir.), cert. denied, — U.S. -, 115 S.Ct. 2011 , 131 L.Ed.2d 1010 (1995); see United States v. Fleishman, 684 F.2d 1329, 1335-36 (9th Cir.) (finding no error in admission of agent’s testimony that defendant acted as a “l…
discussed Cited "see" ca10 1993
10th Cir. · 1993 · signal: see · confidence high
See United States v. Surridge, 687 F.2d 250, 253 (8th Cir.), cert. denied, 459 U.S. 1044 , 103 S.Ct. 465 , 74 L.Ed.2d 614 (1982): 18 [T]he determination as to the relationship or understanding between the police and the informant is a factual determination.
discussed Cited "see" United States v. Johnson
10th Cir. · 1993 · signal: see · confidence high
See United States v. Surridge, 687 F.2d 250, 253 (8th Cir.), cert. denied, 459 U.S. 1044 , 103 S.Ct. 465 , 74 L.Ed.2d 614 (1982): [T]he determination as to the relationship or understanding between the police and the informant is a factual determination.
discussed Cited "see" U.S. v. Robichaux
5th Cir. · 1993 · signal: see · confidence high
See U.S. v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc) cert. denied, 440 U.S. 920 (1979) for a discussion of this two-step approach to admission of extrinsic evidence. 3 U.S. v. Emery, 682 F.2d 493, 497 (5th Cir. 1982) cert. denied 459 U.S. 1044 (1982). 5 The probative value of this evidence is strong.
discussed Cited "see" United States v. Zulquarnan Khan
9th Cir. · 1993 · signal: see · confidence high
See United States v. Fleishman, 684 F.2d 1329 (9th Cir.) (defendants challenged district court’s consideration at sentencing of prior, uncounselled, Mexican convictions), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982).
cited Cited "see" United States v. Moskovits
E.D. Pa. · 1993 · signal: see · confidence high
See United States v. Fleishman, 684 F.2d 1329, 1346 (9th Cir.), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982). 4 .
cited Cited "see" United States v. Stephen Blair Banister
9th Cir. · 1992 · signal: accord · confidence high
United States v. Castillo, 866 F.2d 1071, 1083 (9th Cir.1988); accord United States v. Fleishman, 684 F.2d 1329, 1343-44 (9th Cir.), cert. denied, 459 U.S. 1044 (1982).
cited Cited "see" United States v. Moskovits
E.D. Pa. · 1992 · signal: see · confidence high
See United States v. Fleishman, 684 F.2d 1329, 1346 (9th Cir.), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982).
discussed Cited "see" United States v. Leon Brady (2×)
9th Cir. · 1991 · signal: see · confidence high
See United States v. Fleishman, 684 F.2d 1329, 1346 (9th Cir.) (sentencing court's consideration of prior uncounseled Mexican convictions was not error where court enhanced sentences on the "fact that [defendants] had been involved in drug-related offenses and had not learned from their experiences”) (emphasis added), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982); United States v. Belgard, 694 F.Supp. 1488, 1501 (D.Or.1988) ("I do not read Tucker [, 404 U.S. 443 , 92 S.Ct. 589 ] to prohibit a probation officer from using information about episodes which later led to tri…
discussed Cited "see" United States v. George Humberto Bosch, Sr.
9th Cir. · 1990 · signal: see · confidence high
See United States v. Fleishman, 684 F.2d 1329, 1335-36 (9th Cir.) (“recogniz[ing] the difference between opinions of a defendant’s guilt or innocence and expert testimony regarding the various roles played by persons involved in illegal enterprises”), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982).
cited Cited "see" United States v. Felix Rodriguez
1st Cir. · 1988 · signal: see · confidence high
See United States v. Fleishman, 684 F.2d 1329, 1342 (9th Cir.), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982).
cited Cited "see" United States v. Randy Lamont Patterson AKA Randy Brown, Marcus Wayne Edmundson, Tony Burton, Don Grogans, and Billy Ray Brown
9th Cir. · 1987 · signal: see · confidence high
See United States v. Fleishman, 684 F.2d 1329, 1340 (9th Cir.), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982).
cited Cited "see" United States v. Michael Jeffrey Stotts, James Poole, Jack Segura, and Wilfred Fabiano
5th Cir. · 1986 · signal: see · confidence high
See United States v. Fleishman, 684 F.2d 1329, 1336 (9th Cir.1982), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982) (handwriting expert testimony properly allowed).
discussed Cited "see" Wallace v. Mcmanus
10th Cir. · 1985 · signal: accord · confidence high
Accord James v. United States, 459 U.S. 1044 , 103 S.Ct. 465 , 74 L.Ed.2d 615 (1982) (Brennan, J.) (opinion respecting denial of petition for certiorari). 8 Accordingly, we conclude that Wallace is entitled to relief from the judgment.
cited Cited "see" Wallace v. McManus
10th Cir. · 1985 · signal: accord · confidence high
Accord James v. United States, 459 U.S. 1044 , 103 S.Ct. 465 , 74 L.Ed.2d 615 (1982) (Brennan, J.) (opinion respecting denial of petition for certiorari).
discussed Cited "see" ca8 1985
8th Cir. · 1985 · signal: see · confidence high
Id.; see United States v. Surridge, 687 F.2d 250, 255 (8th Cir.), cert. denied, 459 U.S. 1044 , 103 S.Ct. 465 , 74 L.Ed.2d 614 (1982); cf. United States v. Ordonez, 737 F.2d 793, 799 (9th Cir.1983) (confrontation clause error involves substantial rights which must be reviewed even in absence of timely objection). 45 Nor can we say that the ledger's admission constituted plain error.
cited Cited "see" United States v. Larry Dean Rogers
9th Cir. · 1985 · signal: see · confidence high
See United States v. Fleishman, 684 F.2d 1329, 1335 (9th Cir.), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982).
discussed Cited "see" United States v. Helmel
8th Cir. · 1985 · signal: see · confidence high
Id.; see United States v. Surridge, 687 F.2d 250, 255 (8th Cir.), cert. denied, 459 U.S. 1044 , 103 S.Ct. 465 , 74 L.Ed.2d 614 (1982); cf. United States v. Ordonez, 737 F.2d 793, 799 (9th Cir.1983) (confrontation clause error involves substantial rights which must be reviewed even in absence of timely objection).
cited Cited "see" United States v. John B. Green
9th Cir. · 1985 · signal: see · confidence high
See United States v. Fleishman, 684 F.2d 1329, 1340 (9th Cir.), cert, denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982).
discussed Cited "see" United States v. Daniel A. Monaco, Jr. (2×)
9th Cir. · 1984 · signal: see · confidence high
See United States v. Fleishman, 684 F.2d 1329 , 1338 n. 10 (9th Cir.), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982).
discussed Cited "see, e.g." Martinez v. United States
D. Haw. · 2000 · signal: see also · confidence low
Nee United States v. Morgan, 346 U.S. 502 , 505 n. 4, 74 S.Ct. 247 , 98 L.Ed. 248 (1954) (holding that district courts may issue the writ under the All Writs Act, 28 U.S.C. § 1651 (a)); see also James v. United States, 459 U.S. 1044 , 103 S.Ct. 465 , 74 L.Ed.2d 615 (1982) (opinion of Justice Brennan supporting denial of petition for writ of certiorari explaining purpose of coram nobis).
discussed Cited "see, e.g." United States v. Shore
E.D.N.Y · 1995 · signal: see, e.g. · confidence low
See e.g., United States v. Fleishman, 684 F.2d 1329, 1346 (9th Cir., cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982)) (upholding sentence where “[t]he district court was ... under no mistaken impression that the convictions were constitutionally valid under this country’s laws as was the sentencing court in Tucker’’).
discussed Cited "see, e.g." United States v. Anthony Wayne Fagan, United States of America v. Anthony Wayne Fagan
9th Cir. · 1993 · signal: see, e.g. · confidence low
See, e.g., United States v. Fleishman, 684 F.2d 1329, 1343 (9th Cir.) ("[a] prosecutor may properly comment upon a defendant's failure to present witnesses so long as it is not phrased as to call attention to defendant's own failure to testify”), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982).
discussed Cited "see, e.g." United States v. William Barkley, Kathleen White, and William C. White
9th Cir. · 1993 · signal: see also · confidence low
See also United States v. Fleishman, 684 F.2d 1329, 1335-36 (9th Cir.) (expert testimony is admissible to help jury understand how drug dealers perform counter surveillance during narcotics transactions), cert. denied, 459 U.S. 1044 (1982). 35 Modus operandi testimony was necessary in this case to help the jury understand the complex scheme involved in using church "fronts," vows of poverty, and nominees to hide income from the IRS.
cited Cited "see, e.g." United States v. Milton Eugene Robins
5th Cir. · 1993 · signal: see, e.g. · confidence low
See e.g., United States v. Fleishman, 684 F.2d 1329, 1340 (9th Cir.), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982).
cited Cited "see, e.g." United States v. Robins
5th Cir. · 1992 · signal: see, e.g. · confidence low
See e.g., United States v. Fleishman, 684 F.2d 1329, 1340 (9th Cir.), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982).
discussed Cited "see, e.g." United States v. Benjamin F. Gay Iii, Roy M. Porter
9th Cir. · 1992 · signal: compare · confidence low
Compare United States v. Wagner, 834 F.2d 1474, 1486 (9th Cir.1987) (de novo) and United States v. Doubleday, 804 F.2d 1091, 1093 (9th Cir.1986) (de novo), cert, denied, 481 U.S. 1005 , 107 S.Ct. 1628 , 95 L.Ed.2d 201 (1987) with United States v. Busby, 780 F.2d 804, 806 (9th Cir.1986) (abuse of discretion) and United States v. Fleishman, 684 F.2d 1329, 1342 (9th Cir.) (abuse of discretion), cert, denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982); *329 see also United States v. Sotelo-Murillo, 887 F.2d 176, 179 (9th Cir.1989) (citing conflicting cases).
discussed Cited "see, e.g." Darwin Jay Robinson, Sr. v. Harold W. Clarke, Warden, Nebraska State Penitentiary
8th Cir. · 1991 · signal: see also · confidence low
See United States v. Watson, 894 F.2d 1345, 1347-48 (D.C.Cir.1990) (finding informant working for government was entrepreneur while in jail on unrelated charge and his testimony did not violate defendant’s sixth amendment right to counsel because he did not act on government’s instruction); United States v. Hicks, 798 F.2d 446, 448-49 (11th Cir.1986) (finding informant’s testimony did *577 not violate defendant’s sixth amendment rights because although informant was working for government at time she was in jail on unrelated charge she was not deliberately planted or instructed to get …
discussed Cited "see, e.g." United States v. Lutrell Davis
9th Cir. · 1989 · signal: compare · confidence low
Compare United States v. Wagner, 834 F.2d 1474, 1486 (9th Cir.1987) (district court’s refusal to give defendant’s jury instruction on theory of case reviewed de novo) and United States v. Doubleday, 804 F.2d 1091, 1093 (9th Cir.1986) (same) (dicta), cert. denied, 481 U.S. 1005 , 107 S.Ct. 1628 , 95 L.Ed.2d 201 (1987), with United States v. Busby, 780 F.2d 804, 806 (9th Cir.1986) (refusal to give defendant’s entrapment instruction reviewed for abuse of discretion) and United States v. Fleishman, 684 F.2d 1329, 1342 (9th Cir.) (same), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2…
discussed Cited "see, e.g." United States v. David Silverman (2×)
9th Cir. · 1988 · signal: see also · confidence low
See also United States v. Fleishman, 684 F.2d 1329, 1338 (9th Cir.) (evidence that defendants were present during negotiations and had repeated contact with conspirators sufficient under Rule 801(d)(2)(E)), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982); United States v. Federico, 658 F.2d 1337, 1343 (9th Cir.1981) (evidence that defendant was present at scene of drug transaction and drove others to rendezvous sufficient under Rule 801(d)(2)(E)), over ruled on other grounds, United States v. De Bright, 730 F.2d 1255, 1259 (9th Cir.1984) (en banc).
discussed Cited "see, e.g." Ian Lightbourne v. Richard L. Dugger, Secretary, Florida Department of Corrections, Robert A. Butterworth, Attorney General (2×)
11th Cir. · 1987 · signal: see also · confidence low
See also United States v. Surridge, 687 F.2d 250 (8th Cir.), cert, denied, 459 U.S. 1044 , 103 S.Ct. 465 , 74 L.Ed.2d 614 (1982); United States v. Malik, 680 F.2d 1162 (7th Cir.1982). .
discussed Cited "see, e.g." Gordon K. Hirabayashi v. United States of America, Gordon K. Hirabayashi v. United States
9th Cir. · 1987 · signal: see also · confidence low
See also James v. United States, 459 U.S. 1044 , 103 S.Ct. 465 , 74 L.Ed.2d 615 (1982) (opinion of Justice Brennan supporting denial of petition for writ of certiorari explaining purpose of coram nobis).
discussed Cited "see, e.g." United States v. Michael Paris (2×)
9th Cir. · 1987 · signal: see, e.g. · confidence low
See, e.g., United States v. Fleishman, 684 F.2d 1329, 1338-39 (9th Cir.), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982).
cited Cited "see, e.g." United States v. Morgan Doubleday
9th Cir. · 1986 · signal: see, e.g. · confidence low
See, e.g., United States v. Fleishman, 684 F.2d 1329, 1342 (9th Cir.), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982).
discussed Cited "see, e.g." United States v. Anthony Taylor (2×)
10th Cir. · 1986 · signal: see also · confidence low
See also, United States v. Surridge, 687 F.2d 250, 254-55 (8th Cir.), cert. denied, 459 U.S. 1044 , 103 S.Ct. 465 , 74 L.Ed.2d 614 (1982).
discussed Cited "see, e.g." United States v. David Silverman (2×)
9th Cir. · 1985 · signal: see, e.g. · confidence low
See, e.g., United States v. Fleishman, 684 F.2d 1329, 1338 (9th Cir.), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982); United States v. Knight, 416 F.2d 1181, 1184 (9th Cir.1969)
cited Cited "see, e.g." United States v. Claret Echeverry
9th Cir. · 1985 · signal: see, e.g. · confidence low
See, e.g., United States v. Fleishman, 684 F.2d 1329, 1339 (9th Cir.), cert. denied, 459 U.S. 1044 , 103 S.Ct. 464 , 74 L.Ed.2d 614 (1982).
discussed Cited "see, e.g." Korematsu v. United States
N.D. Cal. · 1984 · signal: see also · confidence low
See also James v. United States, 459 U.S. 1044 , 103 S.Ct. 465 , 74 L.Ed.2d 615 (1982) (dissenting opinion in denial of petition for writ of certiorari explaining purpose of coram nobis); Chres *1412 field v. United States, 381 F.Supp. 301, 302 (E.D.Pa.1974).
discussed Cited "see, e.g." Wilson v. Atwood Group
5th Cir. · 1984 · signal: see also · confidence low
Construction Co., 569 F.2d 1036, 1038 (8th Cir.1978); Braden v. University of Pittsburgh, 552 F.2d 948, 952-55 (3d Cir.1977); Smith v. Jackson Tool & Die, Inc., 426 F.2d 5, 8 (5th Cir.1970) (per curiam); Fidelity & Deposit Co. of Maryland v. UsaForm Hail Pool, Inc., 523 F.2d 744, 751 (5th Cir.1975), cert. denied, 425 U.S. 950 , 96 S.Ct. 1725 , 48 L.Ed.2d 194 (1976); see also James v. United States, 459 U.S. 1044 , 103 S.Ct. 465, 466-67 , 74 L.Ed.2d 615 (1982) (Brennan, J., denying cert.).
Raymond Edward James
v.
United States
81-6665.
Supreme Court of the United States.
Nov 29, 1982.
459 U.S. 1044
Brennan, Blackmun.
Cited by 21 opinions  |  Published
2 passages pin-cited by 4 cases
Pinpoint authority: bottom 76%
Citer courts: Court of Criminal Appeals of A… (3) · N.D. California (1)

C. A. 9th Cir. Certiorari denied.

Opinion of

Justice Brennan, with whom Justice Blackmun joins,

respecting the denial of the petition for writ of certiorari.

Opinions supporting denial of petitions for certiorari are understandably seldom filed, but this in my view is one of the[*1045] rare cases where the filing of such an opinion is justified. Cf. Estate of Wilson v. Aiken Industries, Inc., 439 U. S. 877 (1978) (Blackmun, J., concurring in denial of writ of cer-tiorari); Maryland v. Baltimore Radio Show, Inc., 338 U. S. 912 (1950) (Frankfurter, J., opinion respecting denial of writ of certiorari).

Petitioner, after conviction on federal criminal charges, filed a timely motion for reduction of sentence under Federal Rule of Criminal Procedure 35. The motion was denied on July 7,1981. For some reason, however, notice of the denial from the Clerk of the District Court was not received by either petitioner or the United States Attorney. Petitioner — who was incarcerated the entire time — first learned of it by happenstance in September 1981. He promptly requested leave from the District Court to appeal out of time, and that court, after due investigation of the circumstances, granted his request.

The Government explicitly refused to contest the propriety of the appeal before the Court of Appeals for the Ninth Circuit. Nevertheless, the Court of Appeals sua sponte dismissed the appeal, holding that district courts may not grant leave to appeal after the maximum extension period has passed. See Fed. Rule App. Proc. 4(b). The court implied that the rigidity of Rule 4(b) could not be set aside even though this petitioner was ignorant, through no fault of his own, of the denial of his Rule 35 motion throughout the period of an allowable extension. Cf. Fed. Rule Crim. Proc. 49(c). [1] Petitioner sought certiorari here, and the Solicitor General informed us that he “do[es] not oppose vacation of the judgment of dismissal and remand to the [Cjourt of [Appeals.” Memorandum for United States 1.

[*1046] 1 do not question the correctness of the Court of Appeals’ construction of Federal Rule of Appellate Procedure 4(b), nor that its sua sponte action is consistent with the plain language of Federal Rule of Criminal Procedure 49(c). Nevertheless, if Rules 4(b) and 49(c) were truly the last word in defining petitioner’s opportunity to appeal under our federal system of procedure, I would have serious doubts about the constitutionality of that system of procedure. Simply put, the application of these Rules to penalize an uncounseled and incarcerated criminal defendant for a clerical error that was none of his doing and of which he had no knowledge would seem to me not only unduly harsh but resoundingly unjust. See Logan v. Zimmerman Brush Co., 455 U. S. 422, 433-437 (1982); Boddie v. Connecticut, 401 U. S. 371, 377-379 (1971); Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313-315 (1950). [2] But I do not think that the Court of Appeals was precluded by those Rules from affording petitioner redress. For, at least with respect to the pair of Civil Rules that directly parallel the provisions at issue here, [3] Courts of Appeals have held that in certain “unique” or “extraordinary” circumstances it would not be inconsistent with the Rules or the intent of Congress for the district court to vacate and reenter the original order to create a fresh judgment from which timely appeals could be perfected. [4] Au[*1047] thority to do this has been found in Federal Rule of Civil Procedure 60(b), which was designed, in large part, to replace the common-law writ of coram nobis in civil cases. In criminal cases, the writ of coram nobis itself remains available whenever resort to a more usual remedy would be inappropriate. [5] See United States v. Morgan, 346 U. S. 502 (1954). Rather than sua sponte dismissing petitioner’s appeal, the Court of Appeals might thus have considered whether the circumstances of this case warranted both treating petitioner’s request to the District Court for leave to file an out-of-time notice of appeal as a motion for a writ of coram nobis to vacate and reenter its July 7 order, and treating the District Court’s order allowing the notice of appeal to be filed as having granted such a motion. Cf. Browder v. Director, Illinois Dept. of Corrections, 434 U. S. 257, 272 (1978) (Blackmun, J., concurring). [6] Moreover, I would not regard the Court of Appeals’ failure to take that course as foreclosing petitioner’s right, within a reasonable time after our denial of certiorari today, to apply anew to the District Court for a writ of coram nobis. If petitioner successfully files such a motion, the Court of Appeals on appeal may, admittedly, be as inhospita[*1048] able to that motion as it was to his request to file an out-of-time notice of appeal. But consideration of any constitutional implications of such a holding may appropriately await the event. [7] In light of these possible avenues of relief, I agree that review by this Court at this time is not warranted, and therefore vote to deny the petition for certiorari.

1

In response to a letter from petitioner which the Court of Appeals construed as a motion for reconsideration, the court reaffirmed its dismissal, but expressed the view that petitioner could file a new motion under Rule 35, and then perfect an appeal from denial of such a motion. See n. 2, infra.

7

1 suppose also that a holding is possible that, although comm nobis is an appropriate vehicle for mitigating the harshness of Rule 4(b), petitioner’s circumstances are not sufficiently “extraordinary” for him to merit such relief. In that event, what constitutional issues arise in the case will at least be significantly more focused.

2

If the Court of Appeals were right that petitioner could file a new motion under Federal Rule of Criminal Procedure 35, see n. 1, supra, the problems posed by its decision might be significantly mitigated. But Rule 35 sets a 120-day time limit on motions to reduce a legal sentence, and I do not understand how petitioner could bring a new Rule 35 motion at this time without facing jurisdictional obstacles even more serious than those ¡apparent in the appeal dismissed by the Court of Appeals.

3

See Fed. Rule App. Proc. 4(a); Fed. Rule Civ. Proc. 77(d).

4

See, e. g., Buckeye Cellulose Corp. v. Braggs Electric Construction Co., 569 F. 2d 1036, 1038-1039 (CA8 1978); Fidelity & Deposit Co. of Maryland v. USAFORM Hail Pool, Inc., 523 F. 2d 744, 747-751 (CA5 1975), cert. denied, 425 U. S. 950 (1976); Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institute, 163 U. S. App. D. C. 140, 500 F. 2d 808 (1974). The Ninth Circuit itself has recognized that district[*1047] courts could employ this procedure under the proper circumstances, although it has not, as best as I can tell, ever actually found such circumstances to have been shown. See Rodgers v. Watt, 680 F. 2d 1295, 1298 (1982); Kramer v. American Postal Workers Union, AFL-CIO, 556 F. 2d 929 (1977).

5

Title 28 U. S. C. §2255, which has taken over most of the function of the writ of coram nobis in federal criminal procedure, only applies to collateral attacks on underlying sentences, and could not be employed to vacate and reenter an order denying a motion under Rule 35.

6

In the alternative, the Court of Appeals might have exercised its own residual appellate jurisdiction and remanded the matter to the District Court to allow it to vacate and reenter the order from which petitioner sought appeal. Cf. Moody v. Flowers, 387 U. S. 97, 104 (1967); Gully v. Interstate Natural Gas Co., 292 U. S. 16, 18-19 (1934). Neither of these approaches could possibly have prejudiced the Government, since it has consistently declined to contest the jurisdictional basis of petitioner’s appeal.