ORDER FINDING GOOD CAUSE AND EXCUSABLE NEGLECT TO EXTEND THE TIME FOR THE FILING OF THE NOTICE OF APPEAL AND RECOMMENDATION THEREON

ANTHONY J. BATTAGLIA, District Judge.

On remand from the Ninth Circuit Court of Appeals, this Court held a hearing on September 28, 2018 to provide notice and opportunity for appellant to request the time for filing of a notice of appeal be extended, for a period not to exceed thirty (30) days from expiration of the time proscribed by Rule 4(b), upon a finding of excusable neglect or good cause.

Appellant was present for the hearing as well as counsel of record, Robert C. Schlein, Esq. and Assistant U.S. Attorney Alicia Williams.

Appellant was sentenced on August 6, 2018 and judgment was entered on August 8, 2018. At the time sentence was imposed, the Court inquired of the defense about the waiver of appeal and collateral attack provision in the plea agreement, and defense counsel acknowledged that that provision was in effect, and that appeal was waived1. Two days later, Appellant desired to appeal the conviction and judgment and sought to advise his counsel of that fact by letter dated August 10, 2018. This letter was purportedly faxed from the jail library. Unfortunately, Mr. Schlein has stated that he did not receive the letter by fax or regular mail, and he believed appeal had been waived.

Nothing occurred in the case until the Court received Appellant's letter dated September 6, 2018 reporting a lack of communication with his counsel and a purported notice of appeal. This letter was received and filed by the Court on September 19, 2018. Upon review, the Court of Appeals remanded the case by order filed September 24, 2018 to address the notice and opportunity to address potential relief for Appellant.

The Court finds good cause and excusable neglect and recommends that Appellant's time to file his notice of appeal be extended under Fed. R. App. P. 4(b)(4). Appellants filing on September 19, 2018, and is within Fed. R. App. P. 4(b)(4), a period of thirty (30) days after the expiration of the time to file the notice of appeal, should be found timely under the extension.

Appellant steadfastly asserts his desire to appeal and feels he did what he could to alert his attorney of his desire and his request for a notice to appeal to be filed. Regrettably his efforts failed and time passed. As a non-English speaking man, with limited education, he made his best efforts to proceed with an appeal, Ultimately writing the district court. Counsel was none the wiser and assumed incorrectly that his client wished no further service. Counsel should have taken additional steps to be certain. Good cause and excusable neglect are established. Appellant also claimed, at the September 28, 2018 hearing, that he did not understand the waiver of appeal provision in his plea agreement. In any event, it is clear from Appellant, that his concerns involving the appeal will implicate a claim for ineffective assistance of counsel. As such, this Court recommends that the Court of Appeal grant Mr. Schlein's motion to be relieved. That motion is filed in the District Court, as Docket No. 37. This Court has previously found Mr. Leon qualifying for appointed counsel, and nothing has changed in his status, so new counsel should be appointed.

IT IS SO ORDERED.