United States v. Privott

U.S. Court of Appeals for the Fourth Circuit
United States v. Privott, 10 F. App'x 49 (4th Cir. 2001)

United States v. Privott

Opinion of the Court

OPINION

PER CURIAM.

On July 6, 2000, the district court summarily dismissed Arthur W. Privott’s 28 U.S.C.A. § 2255 (West Supp. 2000) motion pursuant to Fed.R.Civ.P. 56. Privott did not file a timely notice of appeal, but on October 13, 2000, filed a motion pursuant to Fed.R.App.P. 4(a)(6) to reopen the time to file an appeal. Pursuant to Fed. R.App.P. 4(a)(1)(B), a party in a civil case in which the Government is a party must file his notice of appeal within sixty days of entry of judgment. When a party entitled to notice of the entry of the judgment or order sought to be appealed did not re*50ceive notice from the district court or another party, however, the district court can reopen the appeal period for up to fourteen days. Fed.R.App.P. 4(a)(6).

Privott alleges he did not receive notice of the district court’s order within twenty-one days of its entry. He has submitted on appeal a copy of what is purportedly the mailing envelope from the district court that is postmarked September 28, 2000. The record on appeal contains no evidence of when the district court mailed its final order to Privott, and the district court made no factual findings as to when the order was mailed or received or as to whether the Government would be prejudiced if Privott’s motion to reopen were granted.

We review the denial of a motion to reopen the time to appeal under Fed. R.App.P. 4(a)(6) for abuse of discretion. Because the record before us on appeal does not contain any information concerning the district court’s reasoning in denying the motion to reopen, we are unable to assess whether or not the court abused its discretion. While we express no opinion as to the merits of Privott’s motion, we remand this case to the district court for findings under Fed.RApp.P. 4(a)(6). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

REMANDED.

Reference

Full Case Name
United States v. Arthur W. PRIVOTT, a/k/a Big Bud
Status
Published