545 F.2d 874 (3rd Cir. 1976), 75-2236, United States v. Solly

Docket Nº75-2236, 75-2410.
Citation545 F.2d 874
Party NameUNITED STATES of America v. Edward Elmer SOLLY et al. Appeal of Charles J. SMITH.
Case DateDecember 09, 1976
CourtUnited States Courts of Appeals, Court of Appeals for the Third Circuit

Page 874

545 F.2d 874 (3rd Cir. 1976)

UNITED STATES of America

v.

Edward Elmer SOLLY et al.

Appeal of Charles J. SMITH.

Nos. 75-2236, 75-2410.

United States Court of Appeals, Third Circuit

December 9, 1976

Submitted on briefs Sept. 14, 1976.

As Amended Dec. 29, 1976.

Page 875

Charles J. Smith, pro se.

Judith M. Mears, Supervising Atty., Yale Legal Services Organization, New Haven, Conn., for appellant, Charles J. Smith; Joseph S. Genova, Yale Law School, Class of 1977, on brief.

Jonathan L. Goldstein, U.S. Atty., Maryanne T. Desmond, John J. Barry, Asst. U.S. Attys., Newark, N.J., for appellee, United States of America.

Before SEITZ, Chief Judge, and ALDISERT and GIBBONS, Circuit Judges.

OPINION

SEITZ, Chief Judge.

We are here concerned with separate appeals by the same party (Smith). In No. 2236, Smith appeals out of time from an order of the district court denying his Rule 35 motion for reduction of sentence. In No. 2410, he appeals from the denial of his motion, pursuant to Fed.R.App.P. 4(b), for an extension of time within which to file his appeal in No. 2236. The district court's docket sheets show that Smith was again untimely, however, in filing his appeal in No. 2410. Thus, this Court cannot assume jurisdiction over No. 2410 unless it is first appropriately determined that the notice in No. 2410 was in fact timely filed, or that there was excusable neglect in filing such notice out of time.

On August 15, 1975, Smith, an inmate at the Federal Correctional Institution at Danbury, Connecticut (Danbury), filed in the New Jersey District Court a timely Rule 35 motion for reduction of sentence. Although Smith was proceeding pro se, he was assisted by a law student, Mr. Genova, participating in the Yale Legal Services Organization. From affidavits filed for the first time in this Court by Smith and Genova, it appears that the following events transpired.

On September 26, 1975, an order was entered denying the motion to reduce the sentence. The notification of the order was sent to Smith and Genova in Danbury. Smith had been temporarily transferred to a New Jersey prison to enable him to stand trial there on unrelated criminal charges, however, and his mail was not forwarded to him in New Jersey. Moreover, Genova's attempts to reach Smith in New Jersey to apprise him of his appeal rights were unsuccessful.

Smith was returned to Danbury on October 6 and first learned at that time that his Rule 35 motion had been denied. On October 10, Smith was informed of his appeal right by Genova and signed a notice of appeal which was sent to the district court on October 13 or 14 and filed on October 17 which was 11 days out of time.

During the time that Genova could not reach Smith in New Jersey, Genova arranged to have a New Jersey attorney, who was then representing Smith on the state charges, file a motion under Fed.R.App.P. 4(b) for extension of time within which to appeal denial of the Rule 35 motion on the basis of excusable neglect. This motion was filed on October 7. The motion for extension, which was necessarily prepared

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without having contacted Smith, stated as the basis for excusable neglect only that "By reason of his being in New Jersey, the defendant has not had sufficient opportunity to consider the decision of the Court, or the reasons therefor."

An order denying the motion was entered on October 21 and a copy sent to the New Jersey attorney who mailed it to Genova in Danbury on October 24. Genova received the order on October 27...

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