Brannan v. U.S.
| Decision Date | 20 May 1993 |
| Docket Number | No. 93-80162,93-80162 |
| Parties | Michael Owen BRANNAN, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael Owen Brannan, in pro per.
No appearance for respondent.
Before: HUG, WIGGINS and THOMPSON, Circuit Judges.
On August 29, 1988, the district court sentenced petitioner Michael Owen Brannan ("Brannan") to imprisonment for a term of 15 years for use of a counterfeit access device in violation of 18 U.S.C. § 1029(a)(1) and misuse of a social security number in violation of 42 U.S.C. § 408(g)(2). Brannan was deemed eligible to partake in a study pursuant to 18 U.S.C. § 4205(d), and on December 19, 1988, the district court suspended the remainder of Brannan's sentence and placed Brannan on probation for a period of five years, with various terms and conditions governing his release.
Following a hearing on January 25, 1993, the district court found that Brannan violated the terms and conditions of his probation. On February 1, 1993, the district court entered an order revoking the December 19, 1988 order of probation and committing Brannan to the custody of the Attorney General for a term of two years. The record reveals that Brannan was represented during the district court proceedings by appointed counsel; counsel, however, did not file a notice of appeal on behalf of Brannan.
On March 11, 1993, this court received a pro se letter from Brannan which referred to the district court's order revoking probation and indicated that Brannan sought to "get the sentence reduced." Because this letter evinces an intent to appeal from the district court's February 1, 1993 order, we construe Brannan's letter as a notice of appeal. See Rabin v. Cohen, 570 F.2d 864, 866 (9th Cir.1978) ().
When a notice of appeal in a civil case is mistakenly filed in this court, we have ordered the Clerk of the Court to transmit the notice of appeal to the clerk of the district court for filing on the date it was received in this court, as provided by Federal Rule of Appellate Procedure 4(a)(1). 1 See, e.g., Portland Fed. Employees Credit Union v. Cumis Ins. Soc'y, Inc., 894 F.2d 1101, 1103 (9th Cir.1990). In this case, Brannan appeals from an order entered in a criminal case; thus, Federal Rule of Appellate Procedure 4(b) governs.
In contrast to Rule 4(a), Rule 4(b) is silent on whether a court of appeals should transmit a notice of appeal in a criminal matter to the clerk of the district court when the notice has been mistakenly filed in the appellate court. We find that the equities underlying the transfer provision of Rule 4(a) also are present in the context of criminal appeals, especially when the notice of appeal is submitted by a pro se litigant. Accordingly, we direct the Clerk...
To continue reading
Request your trial
-
U.S. v. Withers
...Cir.2002) (treating a pro se notice of appeal as a request for a certificate of probable cause or appealability); Brannan v. United States, 993 F.2d 709, 710 (9th Cir.1993) (construing a pro se letter as a notice of appeal). Construing Withers's notice of appeal as both a notice of appeal a......
-
U.S.A v. Withers
...Cir.2002) (treating a pro se notice of appeal as a request for a certificate of probable cause or appealability); Brannan v. United States, 993 F.2d 709, 710 (9th Cir.1993) (construing a pro se letter as a notice of appeal). Construing Withers's notice of appeal as both a notice of appeal a......
-
Pineda v. Bank of Am., N.A. (In re Pineda)
...e.g., Smith v. Barry, 502 U.S. 244, 248-50 (1992) (construing pro se's appellate brief as a potential notice of appeal); Brannan v. U.S., 993 F.2d 709 (9th Cir. 1993) (construing pro se's letter challenging district court order as a notice of appeal).9 Even though Pineda intended the leave ......
-
Wildhaber v. Burchard (In re Wildhaber)
...Smith v. Barry, 502 U.S. 244, 248-50 (1992) (construing pro se's appellate brief as a potential notice of appeal); Brannan v. United States, 993 F.2d 709, 710 (9th Cir. 1993) (construing a letter from a pro se appellant as a notice of appeal). However, based upon Debtor's failure to provide......