United States v. Jack Leon Lucas, 597 F.2d 243 (10th Cir. 1979). · Go Syfert
United States v. Jack Leon Lucas, 597 F.2d 243 (10th Cir. 1979). Cases Citing This Book View Copy Cite
60 citation events (10 in the last 25 years) across 11 distinct courts.
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At page 245 Jurisdictional limits and clerical function of notice of appeal31 citing cases“it would be most helpful if the district court would advise a would-be appellant, and particularly one who is pro se, that his notice of appeal is untimely, thereby putting him on notice that some immediate action is yet required to secure appellate jurisdiction.”2 citing courts quote it · 1 cautionary
  • Thomas v. United States, 586 A.2d 1228 (D.C. 1991).published Cited "but see"
    ([i]t would be most helpful if the district court would advise a would-be appellant ... that his notice of appeal is untimely, thereby putting him on notice that some immediate action is yet required to secure appellate…)
  • Harper v. Guthrie, 660 F. App'x 620 (10th Cir. 2016).unpublished 2 cites
    ([T]he acceptance of a notice of appeal for filing is a mere clerical function.)
  • Chung v. Lamb, No. 18-1479 (10th Cir. Dec. 12, 2019).unpublished
    Cf. United States v. Lucas, 597 F.2d 243, 245 (10th Cir. 1979) (per curiam) (“The burden of establishing a sufficient reason for failure to comply with the filing requirements remains with the appellant.”).
  • United States v. Avalos-Vasquez, 250 F. App'x 235 (10th Cir. 2007).unpublished
    See United States v. Espinosa-Talamantes, 319 F.3d 1245, 1246 (10th Cir.2003); United States v. Lucas, 597 F.2d 243, 245-46 (10th Cir.1979).
  • United States v. Roland Lorenzo Mitchell, 464 F.3d 1149 (10th Cir. 2006).published
    United States v. Lucas, 597 F.2d 243, 245 (10th Cir.1979).
  • United States v. Thrower, No. 98-2253 (10th Cir. July 2, 1999).unpublished
    App. P. 4(b) was due to excusable neglect under the standards set forth in United States v. Lucas, 597 F.2d 243, 245 (10th Cir. 1979). -2- court in New Mexico attempting to show that evidence relating to his withdrawn federal indictment wo…
  • United States v. Price, 145 F.3d 1347 (10th Cir. 1998).unpublished
    See Fallen v. United States, 378 U.S. 139, 142-44 , 84 S.Ct. 1689 , 12 L.Ed.2d 760 (1964); United States v. Lucas, 597 F.2d 243, 245 (10th Cir.1979).
  • United States v. Antoine Richmond, A/K/A Shawn A. Forbes, Antoine Forbes, 120 F.3d 434 (3d Cir. 1997).published
    See United States v. Long, 905 F.2d 1572, 1574 (D.C.Cir.), cert. denied, 498 U.S. 948 , 111 S.Ct. 365 , 112 L.Ed.2d 328 (1990); United States v. Lucas, 597 F.2d 243, 245 (10th Cir.1979) (per curiam); United States v. Stolarz, 547 F.2d 108,…
  • United States v. McMillan, 106 F.3d 322 (10th Cir. 1997).published
    In United States v. Lucas, 597 F.2d 243, 245 (10th Cir.1979), we held that a defendant who filed his notice of appeal within the Rule 4(b) thirty-day extension period may obtain relief by showing excusable neglect notwithstanding his failu…
  • United States v. Dan E. Gibson, 36 F.3d 1106 (10th Cir. 1994).published
    United States v. Lucas, 597 F.2d 243, 245 (10th Cir.1979).
Show 21 more citing cases
  • United States v. St. Paul Fire & Marine Ins. Co., 36 F.3d 1106 (3d Cir. 1994).published
    In making this determination, the court "may consider all relevant factors." United States v. Lucas, 597 F.2d 243, 245 (10th Cir.). 15 Appellees argue that the original faulty Notice amounted to no more than a "clerical error" that many co…
  • United States v. Juan Batista, 22 F.3d 492 (2d Cir. 1994).published
    See United States v. Wrice, 954 F.2d 406, 408-10 (6th Cir.) (per curiam), cert. denied, — U.S.-, 112 S.Ct. 2286 , 119 L.Ed.2d 211 (1992); United States v. Long, 905 F.2d 1572, 1574-75 (D.C.Cir.), cert. denied, 498 U.S. 948 , 111 S.Ct. 365…
  • United States v. Gibson, 832 F. Supp. 324 (D. Kan. 1993).published
    United States v. Lucas, 597 F.2d 243, 245 (10th Cir.1979).
  • Renaldo J. Gamble v. United States, 989 F.2d 507 (10th Cir. 1993).published
    We stated that the rule governing such extensions "clearly demands judicial involvement in the determination that excusable neglect does exist, whereas the acceptance of a notice of appeal for filing is a mere clerical function." Id. (quot…
  • United States v. Gregory Wrice (90-5703) & Tommy Goods (90-5479), 954 F.2d 406 (6th Cir. 1992).published 2 cites
    See also U.S. v. Vastola, 899 F.2d 211, 221 (3rd Cir.1990), vacated on other grounds, — U.S. —, 110 S.Ct. 3233 , 111 L.Ed.2d 744 (1990) (“The key question under Rule 4(b) is when the notice of appeal was filed, not when the time extension…
  • United States v. Keith D. Long, United States of Am. v. Sonia E. Mayfield, 905 F.2d 1572 (D.C. Cir. 1990).published 2 cites
    See, e.g., United States v. Golding, 739 F.2d 183, 184 (5th Cir.1984) (per curiam); United States v. Lucas, 597 F.2d 243, 245-46 (10th Cir.1979) (per curiam); United States v. Stolarz, 547 F.2d 108, 111-12 (9th Cir.1976), cert. denied, 434…
  • United States v. Joseph J. Christoph, 904 F.2d 1036 (6th Cir. 1990).published
    United States v. Kaden, 819 F.2d 813, 817 (7th Cir.1987); United States v. Lucas, 597 F.2d 243, 245-46 (10th Cir.1979) (per curiam) (remanding for consideration of whether notice of appeal filed outside ten-day period but inside forty-day…
  • United States v. Jackson, 528 A.2d 1211 (D.C. 1987).published
    Hence, we need not reach the issue whether the filing of the government’s motion itself satisfied the requirement that an appeal be noted in a timely manner. 8 See, e.g., McClurkin, supra, 472 A.2d at 1351-52 ; Interstate Natural Gas Assoc…
  • United States v. Jose v. Reyes, 759 F.2d 351 (4th Cir. 1985).published 2 cites
    United States v. Lucas, 597 F.2d 243, 245 (10th Cir.1979); United States v. Stolarz, 547 F.2d 108, 111-12 (9th Cir.1976), cert. denied, 434 U.S. 851 , 98 S.Ct. 162 , 54 L.Ed.2d 119 (1977).
  • Jerry Lewis Myers v. Linwood v. Stephenson Attorney Gen. of the State of North Carolina, Rufus L. Edmisten, 748 F.2d 202 (4th Cir. 1984).published 2 cites
    In particular United States v. Lucas, 597 F.2d 243, 245 (10th Cir.1979), stressed that "[i]t would be most helpful if the district court would advise a would-be appellant, and particularly one who is pro se, that his notice of appeal is un…
  • Ralph Pryor v. R.C. Marshall, Sup't., 711 F.2d 63 (6th Cir. 1983).published
    Nevertheless, it is suggested that “ ‘it would be most helpful if the district court would advise a would-be appellant, and particularly one who is pro se, that his notice of appeal is untimely, thereby putting him on notice that some imme…
  • Alfred Burdette Mayfield v. United States Parole Comm'n & United States Prob. Off., 647 F.2d 1053 (10th Cir. 1981).published
    United States v. Lucas, 597 F.2d 243, 245 (10th Cir. 1979).
  • Shephard Arnold Meggett v. Louie L. Wainwright, 642 F.2d 95 (5th Cir. 1981).published
    See Portis v. Harris County, 632 F.2d 486, 487 (5th Cir. 1980); United States v. Lucas, 597 F.2d 243, 245 (10th Cir. 1979).
  • United States v. Munoz, 664 F. App'x 713 (10th Cir. 2016).unpublished
    See United States v. Lucas, 597 F.2d 243, 245 (10th Cir. 1979) Good cause may warrant an extension when the defendant demonstrates an untimely filing resulted from a “situation[ ] in which there is no fault—excusable or otherwise.” Bishop…
  • United States v. Cortez-Perez, 317 F. App'x 829 (10th Cir. 2009).unpublished
    See United States v. Lucas, 597 F.2d 243, 245 (10th Cir.1979).
  • United States v. Manuel Espinosa-Talamantes, Also Known as Ramon Valles-Lopez, 319 F.3d 1245 (10th Cir. 2003).published
    See United States v. Lucas, 597 F.2d 243, 245-46 (10th Cir.1979).
  • United States v. Chavez, 17 F. App'x 847 (10th Cir. 2001).unpublished
    See United States v. Lucas, 597 F.2d 243, 245 (10th Cir.1979).
  • United States v. Eaton, No. 99-5010 (10th Cir. Aug. 29, 2000).unpublished
    See United States v. Lucas, 597 F.2d 243, 245 (10th Cir. 1979).
  • United States v. Cruz-Mendez, No. 98-4048 (10th Cir. Nov. 9, 1999).unpublished
    See United States v. Lucas, 597 F.2d 243, 245 (10th Cir. 1979).
  • United States v. Kayarath, No. 96-3019 (10th Cir. Dec. 8, 1997).unpublished
    See United States v. Lucas, 597 F.2d 243, 245 (10th Cir. 1979).
  • United States v. Piyarath S. Kayarath, A/K/A Be, A/K/A Be Nouanley, 131 F.3d 152 (10th Cir. 1997).published
    See United States v. Lucas, 597 F.2d 243, 245 (10th Cir.1979).
At page 244 cited at this page1 citing case
Other citing cases6 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Jack Leon LUCAS, Defendant-Appellant
78-1347.
Court of Appeals for the Tenth Circuit.
Apr 26, 1979.
Published opinion
597 F.2d 243
1979 U.S. App. LEXIS 15148
Louis W. Bullock, Jr., of Chapel, Wilkinson, Riggs, Abney & Keefer, Tulsa, Okl., on brief, for defendant-appellant., Ronald L. Rencher, U. S. Atty. and Christine L. Fitzgerald, Asst. U. S. Atty., Salt Lake City, Utah, on brief, for plaintiff-appellee.
Seth, Pickett, McWilliams.
Cited by 55 opinions  |  Published
PER CURIAM.

Appellant, Jack Leon Lucas, seeks a direct appeal of his conviction for bank robbery. Because the notice of appeal was untimely filed in the district court, we cannot reach the merits at this time.

Appellant was convicted of bank robbery and the judgment and commitment order entered in the United States District Court for the District of Utah on January 24, 1978. The district court’s docket sheet indicates that the judge advised him of his appeal rights. It further appears that Lucas’ appointed trial counsel was not contacted by Lucas with respect to an appeal and that counsel was subsequently permitted to withdraw.

On February 9, 1978, Lucas drafted and presumably mailed his notice of appeal from the Salt Lake County jail. The notice was filed in the district court on February 13, twenty days after the date of the judgment and ten days overdue. Lucas was not advised by the district court that his notice of appeal was untimely filed. By the time the action was docketed in this court, appellant’s total appeal period, i. e., the ten days for filing the notice of appeal under Fed.R. App.P. 4(b) plus the permissible extension period under the same rule, had run. Lucas is now incarcerated at El Reno, Oklahoma.

Without an order of the district court granting an extension of time in which to file the notice of appeal, this court is without jurisdiction to entertain the appeal. Thus the questions presented for review are two-fold:

1. Does the district court have the power to enter an order granting the extension where the notice of appeal was filed within the extension period but no motion for an extension of time has been made; and
2. What is the appropriate procedural disposition of this case?

In United States v. Connor, Unpublished No. 74-1651 (10th Cir. filed May 12, 1975), we held that in a criminal case where the notice of appeal was filed beyond the ten-day appeal time, but within the thirty-day extension time under Fed.R.App.P. 4(b), the motion for an extension of time could be made beyond the total appeal period. In that case the motion was made in the district court approximately six months after the total appeal period had run.

It is well settled that if the motion itself is filed within the thirty-day exten[*245] sion period following the due date of the notice of appeal, a district court retains limited jurisdiction beyond the running of the total appeal period to act on the motion. Moorer v. Griffin, 575 F.2d 87 (6th Cir. 1978); United States v. Umfress, 562 F.2d 359 (5th Cir. 1977); United States v. Guiterrez, 556 F.2d 1217 (5th Cir. 1977); Salazar v. San Francisco Bay Area Rapid Transit District, 538 F.2d 269 (9th Cir.), cert. denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976); Stirling v. Chemical Bank, 511 F.2d 1030 (2nd Cir. 1975); Alley v. Dodge Hotel, 163 U.S.App.D.C. 320, 501 F.2d 880 (1974); Pasquale v. Finch, 418 F.2d 627 (1st Cir. 1969).

However, the only generally accepted prerequisite for establishing appellate jurisdiction is the filing of a notice of appeal (or some satisfactory equivalent thereof) within the maximum period for which the district court can grant an extension of time based on a showing of excusable neglect under Fed.R.App.P. 4. Craig v. Garrison, 549 F.2d 306 (4th Cir. 1977); Rothman v. United States, 508 F.2d 648 (3rd Cir. 1975); Torockio v. Chamberlain Manufacturing Co., 456 F.2d 1084 (3rd Cir. 1972); Moorer v. Griffin, supra; Salazar v. San Francisco Bay Area Rapid Transit District, supra; United States v. Hoye, 548 F.2d 1271 (6th Cir. 1977); United States v. Guiterrez, supra; United States v. Connor, supra.

We do not concur with the position that the mere acceptance and filing of a notice of appeal by a district court is tantamount to the granting of the requisite extension of time. See United States v. Gibson, 568 F.2d 111 (8th Cir. 1978); United States v. Williams, 508 F.2d 410 (8th Cir. 1974). See also Salazar v. San Francisco Bay Area Rapid Transit District, supra. The rule clearly demands a judicial involvement in the determination that excusable neglect does exist, whereas the acceptance of a notice of appeal for filing is a mere clerical function. Nor do we think it necessary to automatically remand all cases in which such problems arise. United States v. Umfress, supra; Sanchez v. Dallas Morning News, 543 F.2d 556 (5th Cir. 1976); United States v. Guiterrez, supra; Bryant v. Elliott, 467 F.2d 1109 (5th Cir. 1972). Most of the rules of appellate procedure are simply and clearly written and it is up to the litigants to follow them.

It would be most helpful if the district court would advise a would-be appellant, and particularly one who is pro se, that his notice of appeal is untimely, thereby putting him on notice that some immediate action is yet required to secure appellate jurisdiction.

The burden of establishing a sufficient reason for failure to comply with the filing requirements remains with the appellant. In making its determination, the district court may consider all relevant factors. See, e. g., Torockio v. Chamberlain Manufacturing Company, supra; Stirling v. Chemical Bank, supra; Evans v. Jones, 366 F.2d 772 (4th Cir. 1966); Reed v. People of State of Michigan, 398 F.2d 800 (6th Cir. 1968).

It is the opportunity to establish excusable neglect which courts should extend to appellants such as Lucas who have tried, but technically failed, to comply with the requirements for filing a notice of appeal. Moorer v. Griffin, supra; Craig v. Garrison, supra; United States v. Hoye, supra; Bryant v. Elliott, supra; Sanchez v. Dallas Morning News, supra; Rothman v. United States, supra; United States v. Stolarz, 547 F.2d 108 (9th Cir. 1976), cert. denied, 434 U.S. 851, 98 S.Ct. 162, 54 L.Ed.2d 119 (1977); Johnson v. United States, 132 U.S. App.D.C. 4, 405 F.2d 1072 (1968); United States v. Connor, supra.

Accordingly, we hold that a defendant who filed his notice of appeal beyond the time specified in Fed.R.App.P. 4, but within the thirty-day permissible extension period, should have the opportunity tr seek relief by showing excusable neglect. Moorer v. Griffin, supra; Craig v. Garrison, supra; Alley v. Dodge Hotel, supra; United States v. Johnson, supra.

[*246] The case is remanded to the district court and appellant shall have thirty days from the date of this opinion in which to file a motion for extension of time pursuant to Fed.R.App.P. 4(b).

It is so ordered.