U.S. v. Cook

• Decision Date: 11 March 1982
• Docket Number: No. 81-1369,81-1369
• Citation: 670 F.2d 46
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William R. COOK, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 46

670 F.2d 46

UNITED STATES of America, Plaintiff-Appellee, v. William R. COOK, Defendant-Appellant.

No. 81-1369

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

March 11, 1982.

William R. Cook, pro se.

Edward C. Prado, U. S. Atty., Sidney Powell, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before RUBIN, SAM D. JOHNSON, and GARWOOD, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

William Robert Cook appeals the district court's denial of his motion to reconsider its earlier denial of his motion for a new trial. Finding that Cook's motion to reconsider came long after the period for its timely filing had lapsed, we direct dismissal of these proceedings for want of jurisdiction.

Cook was twice convicted of mail fraud in violation of 18 U.S.C. § 1341. His first conviction was vacated on appeal, United States v. Cook, 557 F.2d 1149 (5th Cir.), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 767 (1978); the second conviction was affirmed, 592 F.2d 877 (5th Cir.), cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 289 (1979). On April 30, 1980, Cook moved for a new trial on the basis of newly discovered evidence. ¹ The district court denied his motion on February 9, 1981. On April 6, 1981, fifty-six days after his motion for a new trial was denied, Cook filed a "Motion for Reconsideration and Rehearing on Defendant's Motion for New Trial." The motion for rehearing was denied after consideration of its merits. Cook filed a timely notice of appeal from the denial of his motion for rehearing.

Neither the parties nor the district court questioned the propriety of that court's consideration of Cook's long-delayed motion. Because the delay affected the jurisdiction of the district court, and because the legal issues raised are not novel, the matter is raised and resolved by this Court on its own motion. Gresham Park Community Organization v. Howell, 652 F.2d 1227 (5th Cir. 1981).

Cook's procedural maneuvering requires consideration of three questions: May a party to a criminal proceeding petition the trial court for reconsideration of its order affecting final judgment? If so, is a petition for rehearing filed fifty-six days after entry of that final judgment a timely motion? If not, may the district court nonetheless consider the motion? These issues are readily resolved.

Although a petition for rehearing of a district court order affecting final judgment is nowhere explicitly authorized in the Federal Rules of Criminal Procedure it is undoubtedly a legitimate procedural device. The Supreme Court has repeatedly and expressly sanctioned the use of motions for reconsideration in criminal proceedings. See Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521, rehearing denied, 434 U.S. 1089, 98 S.Ct. 1286, 55 L.Ed.2d 795 (1978); United States v. Dieter, 429 U.S. 6, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976); United States v. Healy, 376 U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964); Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960); Department of Banking v. Pink, 317 U.S. 264, 63 S.Ct. 233, 87 L.Ed. 254 (1942). The Court found authorization of the procedure in "traditional and virtually unquestioned practice," Healy, 84 S.Ct. at 556, and usefulness in its contribution to judicial economy through its direction of issues demanding plenary consideration to that forum possessing a close acquaintance with the facts and posture of the case, Dieter, 97 S.Ct. at 19.

The effects and limitations of such motions have been delineated by the case law. It is well established that in criminal proceedings, petitions for rehearing of orders affecting final judgment are timely filed if made within the period allotted for the noticing of an appeal. Browder, 98 S.Ct. at 556, citing Healy, 84 S.Ct. at 555. In a case such as the one sub judice, where the petition for reconsideration was filed by the defendant, the petition is timely if filed within ten days of the entry of judgment. Fed.R.App.P. 4(b). Here, the order overruling the motion for new trial was the judgment. Cook's petition, fifty-six days in the filing, was long overdue.

The delay was fatal. Just as expressly authorized motions for post-judgment relief, such as motions for a new trial, in arrest of judgment, or for reduction of sentence, are, if filed after the period of time allotted for their entry, see Fed.R.Crim.P. 33, 34, and 35, beyond the jurisdiction of court, United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 286, 4 L.Ed.2d 259 (1960), so too are late petitions for reconsideration of orders entering judgment. That the filing deadline raises a jurisdictional bar was made plain by Browder.

Browder, although arising in the context of a habeas corpus proceeding, presented a situation closely analogous to that raised by Cook's delayed petition. On October 21, 1975, a federal district court granted Browder's petition for habeas corpus by ordering the defendant Corrections Director to release him from custody unless the state retried him within sixty days. Twenty-eight days later, the defendant moved for a stay of...