NOEL L. HILLMAN, District Judge.
This matter comes before this Court by way of a Notice of Intent to Appeal a Judgment [ECF No. 57]
The appeal at issue stems from Defendant's violation of supervised release. On April 25, 2017, Defendant, while serving two terms of supervised release pursuant to two separate federal convictions, was charged with four violations of supervised release for alleged distribution of crack cocaine. [ECF No. 45.]
On May 16, 2018, at a hearing before the late Honorable Jerome B. Simandle, Defendant pleaded guilty to "violation #1" of the petition. That same day, Judge Simandle imposed a sentence of 18 months imprisonment for Defendant in each of the above-referenced federal criminal dockets, to run consecutively, resulting in an aggregate term of 36 months imprisonment. [ECF No. 55.] The Court issued the judgment of conviction on May 17, 2018. [ECF No. 56.]
More than six months after the entry of judgment, on November 26, 2018, the Court received by regular mail the one-page handwritten Notice which bore a handwritten date of "5/28/2018". [ECF No. 57.]
Less than two weeks later, on December 6, 2018, the Court received, again by regular mail, the typed one-page Motion, and a two-page supporting affidavit, requesting the Court's leave for Defendant to file his notice of appeal nunc pro tunc. [ECF No. 58.]
The procedure for initiating the appeal process in a criminal case is governed by Federal Rules of Appellate Procedure 4(b) and (c). Generally, a criminal defendant's notice of appeal must be filed in the district court within 14 days after the entry of the judgment or order being appealed.
However, since Defendant was incarcerated at the Philadelphia Federal Detention Center (hereinafter, the "FDC") and made his filing pro se during his term of incarceration, his submission was governed not only by the deadline calculation of Rule 4(b), but by the terms of Rule 4(c), which determines whether a notice of appeal is timely filed by the date on which the inmate initiated the filing via use of the mail system.
An incarcerated inmate's notice of appeal is considered filed with the district court on the date that it is deposited into the institution's mail system, provided that the submission includes certain indicia of verifiability of the date.
Fed. R. App. P. 4(c)(1)(A) (emphasis added).
Defendant's Notice fails to meet the standard required by Rule 4(c)(1). It contains neither a dated declaration by Defendant under penalty of perjury, nor a notarized statement, as to the date of deposit into the FDC mail system.
Nor does Defendant's subsequent Motion compensate for the deficiencies of the original Notice. Although Defendant makes a dated declaration under penalty of perjury, he says only that he "placed a timely, pro se Notice of Appeal in the institution mail box", without specifying the date.
Defendant's Notice is therefore not timely, and must be dismissed — unless, as Defendant requests, the Court grants his nunc pro tunc Motion, thus essentially waiving the timeliness requirement.
This Court's ability to waive the timeliness requirements of Rule 4 is confined to the extension provision of Rule 4(b)(4). Waiver of timeliness is generally left to the court hearing the appeal. "The time limit for filing a criminal appeal set forth in Rule 4(b) is rigid but not jurisdictional, and may be waived [by the appellate court] if not invoked by the government."
Rule 4(c) similarly allows for exercise of discretion by the appellate court, not the district court. Fed. R. App. P. 4(c)(1)(B) specifies that, if an inmate fails to include the accompanying declaration or notarized statement required by 4(c)(1)(A)(i), or the evidence required in the alternative by 4(c)(1)(A)(ii), it is the "court of appeals," not the District Court, which may "exercise[] its discretion to permit the later filing of a declaration or notarized statement".
The only flexibility a district court has is enunciated by Rule 4(b)(4):
The rules do not permit any further extension.
THEREFORE
IT IS on this