OpenJurist

36 F3d 1094 United States v. Greene

36 F.3d 1094

UNITED STATES of America, Plaintiff-Appellee,
v.
Bernard GREENE, a/k/a Squeaky, Defendant-Appellant.

No. 93-5927.

United States Court of Appeals, Fourth Circuit.

Submitted: Aug. 25, 1994.
Decided: Sept. 19, 1994.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CR-92-317-S)

Mark L. Gitomer, Cardin & Gitomer, Baltimore, MD, for Appellant.

Lynne A. Battaglia, United States Attorney, Katharine J. Armentrout, Assistant United States Attorney, Brent J. Gurney, Assistant United States Attorney, Baltimore, MD, for Appellee.

D.Md.

AFFIRMED.

OPINION

Before RUSSELL and MICHAEL, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PER CURIAM:

1

Bernard Greene appeals the district court's denial of his motion to file an appeal of his criminal conviction out of time. We affirm. Greene's judgment and commitment order was entered on May 5, 1993. Six months later, on November 10, 1993, Greene filed a motion in the district court to appeal out of time the judgment against him based on allegations that trial counsel was ineffective in constructing Greene's plea bargain.

2

Rule 4(b) of the Federal Rules of Appellate Procedure requires that a notice of appeal be filed within ten days of judgment. The district court may extend the time for filing a notice of appeal for thirty additional days upon a showing of excusable neglect with or without motion being filed. The district court may not otherwise extend the time for filing a notice of appeal. See Ali v. Lyles, 769 F.2d 204, 205 (4th Cir.1985); United States v. Reyes, 759 F.2d 351, 353 (4th Cir.), cert. denied, 474 U.S. 857 (1985).

3

Greene filed his "Motion For Appeal-Out-Of-Time" [sic] well beyond the forty-day period following the entry of judgment on May 5, 1993. Hence, the district court did not abuse its discretion in denying Greene's motion. We therefore affirm the district court's denial of Greene's motion to appeal out of time. We dispense with oral argument because the facts and legal contentions are adequately presented before the Court and argument would not aid the decisional process.*

*

We also note that ordinarily a claim for ineffective assistance of counsel should be asserted first in the district court by motion under 28 U.S.C. Sec. 2255 (1988), and not on direct appeal. See United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.1991), cert. denied, 60 U.S.L.W. 3717 (U.S.1992)