United States District Court, D. Minnesota
RICHARD NELSON UNITED STATES DISTRICT JUDGE
matter is before the Court on two motions of defendant Jeremy
David Mount. First, Mount has requested an extension of time
in which to file a notice of appeal challenging his sentence.
See ECF No. 60. Second, Mount seeks in forma
pauperis (“IFP”) status on that appeal.
See ECF No. 65. The Court is without authority to
grant the extension Mount seeks, leaving his appeal untimely.
But because the government must invoke this untimeliness
defense on appeal, and because Mount's appeal is not
otherwise frivolous as the Supreme Court has defined that
term, Mount's IFP application will be granted.
Motion for Extension of Time to Appeal
4(b) of the Federal Rules of Appellate Procedure governs the
time limitations for filing a notice of appeal in a criminal
case. As relevant to this case, a defendant's notice of
appeal must be filed in the district court within 14 days of
the entry of judgment or order being appealed. See
Fed. R. App. P. 4(b)(1)(A)(i). “Upon a finding of
excusable neglect or good cause, the district court may . . .
extend the time to file a notice of appeal for a period not
to exceed 30 days from the expiration of the time otherwise
prescribed by this Rule 4(b).” Fed. R. App. P. 4(b)(4).
“Although these time constraints are not jurisdictional
limitations, ‘Rule 4(b)'s timeliness requirements
[are] inflexible . . . .'” United States v.
Starks, 840 F.3d 960, 960 (8th Cir. 2016) (quoting
United States v. Watson, 623 F.3d 542, 546 (8th Cir.
sentencing judgment Mount seeks to challenge on appeal was
entered August 1, 2017. See ECF No. 54. Under Rule
4(b)(1), Mount had 14 days - that is, until August 15, 2017 -
in which to file a notice of appeal. He failed to do so.
Under Rule 4(b)(4), Mount could, upon showing excusable
neglect or good cause for his failure, file his notice of
appeal up to 30 days after the original deadline - that is,
until September 14, 2017. Again, Mount failed to do
The Court cannot extend beyond September 14 the period of
time in which Mount may file a notice of appeal challenging
his sentence, regardless of the reason, however justifiable,
for his failure to the notice of appeal. Accordingly,
Mount's motion for an extension must be denied.
Application to Proceed IFP
Rule 24(a)(3) of the Federal Rules of Civil Procedure,
A party who was permitted to proceed in forma pauperis in the
district-court action, or who was determined to be
financially unable to obtain an adequate defense in a
criminal case, may proceed on appeal in forma pauperis
without further authorization, unless . . . the district
court - before or after the notice of appeal is filed -
certifies that the appeal is not taken in good faith or finds
that the party is not otherwise entitled to proceed in forma
pauperis and states in writing its reasons for the
certification or finding.
was appointed on behalf of Mount during the criminal
proceedings, though he later retained private counsel.
Further, Mount's IFP application demonstrates his
financial eligibility for IFP status on appeal.
this Court conclude that Mount's appeal is
necessarily taken without good faith. Although the
appeal is untimely, “Rule 4(b) is not
jurisdictional.” Watson, 623 F.3d at 546. The
government may decline to exercise its right to object to the
untimeliness of Mount's appeal - especially as all the
government likely will gain from a timeliness objection is
protracted litigation under 28 U.S.C. § 2255 (including
an evidentiary hearing) about whether Mount's attorney
failed to honor a request to file a notice of appeal. See
Witthar v. United States, 793 F.3d 920, 922-23 (8th Cir.
2015) (extending presumption of prejudice to cases where an
attorney fails to file a requested appeal even where, as
here, the petitioner has waived his right to appeal pursuant
to a plea agreement). Nor does the presence of a waiver of
appellate rights in Mount's plea agreement mean, by
itself, that his appeal is taken not in good faith. See,
e.g., United States v. Baccam, No.
02-CR-0320 (JRT/FLN), 2003 WL 21738592, at *1 (D. Minn. July
22, 2003). Accordingly, Mount's IFP application will be
granted, notwithstanding the untimeliness of his notice of
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY ORDERED THAT:
Defendant Jeremy David Mount's motion for an extension to
file an appeal [ECF No. 60] is DENIED.
Mount's motion to proceed in forma pauperis on