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Michael Norwood v. United States of America

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


July 12, 2011

MICHAEL NORWOOD, PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.

The opinion of the court was delivered by: Honorable Joseph E. Irenas

ORDER

IRENAS, Senior District Judge:

This matter having appeared before the Court on Michael Norwood's Motion to Vacate and Reinstate the Court's Order of June 30, 2010 (Dkt. No. 165), and it appearing that:

1. On June 30, 2010, this Court dismissed Norwood's Motion for Retroactive Application of Sentencing Guidelines under 18 U.S.C. § 3582 for lack of jurisdiction.

2. Due to an administrative error in the Clerk's Office, it appears that Norwood did not receive notice of this Court's June 30, 2010 Order until this Court mailed him a copy in a letter dated April 14, 2011.*fn1

3. On April 20, 2011, Norwood mailed to this Court the instant motion expressing his intent to appeal from the June 30, 2010 Order.

4. Fed. R. App. P. 3(c) provides that a notice of appeal must: "(A) specify the party or parties taking the appeal by naming each one in the caption or body of the notice. . .; (B) designate the judgment, order, or part thereof being appealed; and (C) name the court to which the appeal is taken." Fed. R. App. P. 3(c). In the instant Motion, Defendant has clearly manifested his intent to appeal the June 30, 2010 Order and although he has not specified the court to which the appeal shall be taken, he may only appeal to the United States Court of Appeals for the Third Circuit. Therefore, this Court will construe Norwood's Motion as a Notice of Appeal in accordance with Fed. R. App. P. 3(c). See Virgin Islands v. Mills, 634 F.3d 746, 751 (3d Cir. 2011) (explaining that "the duty to construe appeal notices liberally is heightened in cases involving pro se appellants").

5. Fed. R. App. P. 4(b)(1) provides: "In a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days after . . . the entry of either the judgment or the order being appealed." In United States v. Grana, the Third Circuit held that "in computing the timeliness of pro se prisoners' appeals, any prison delay in transmitting to the prisoner notice of the district court's final order or judgment shall be excluded from the computation of an appellant's time for taking an appeal." 864 F.3d at 316.*fn2

5. In accordance with Grana, in calculating the timeliness of Norwood's appeal, this Court will exclude the time period between June 30, 2010 and April 13, 2011 because it represents a delay in transmitting to Norwood notice of this Court's June 30, 2010 Order. Therefore, assuming that Norwood received notice of the Order on April 14, 2011, and he delivered his Motion to prison authorities for mailing on April 20, 2011,*fn3 his Motion is timely under Fed. R. App. P. 4(b)(1).

IT IS on this 12th day of July, 2011,

ORDERED THAT:

1. Norwood's Motion to Vacate and Reinstate the Court's Order of June 30, 2010 shall be docketed as a timely Notice of Appeal.

2. Norwood's Motion (Dkt. No. 165) is dismissed as moot.

JOSEPH E. IRENAS, S.U.S.D.J.


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