2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-26-2010

USA v. Rudolph Hubbard

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1346

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Recommended Citation

"USA v. Rudolph Hubbard" (2010). 2010 Decisions. Paper 707.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/707
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-1346

___________

UNITED STATES OF AMERICA

v.

RUDOLPH HUBBARD,

 Appellant.

___________

On Appeal from the District Court of the Virgin Islands

(D.C. Criminal No. 3-05-cr-00067-001)

District Judge: The Honorable Curtis V. Gomez

___________

Submitted Under Third Circuit LAR 34.1(a)

December 4, 2009

BEFORE: McKEE, Chief Judge, FUENTES and NYGAARD, Circuit Judges.

(Filed: August 26, 2010 )

___________

OPINION OF THE COURT

___________

NYGAARD, Circuit Judge.
At the time of the event grounding this case, Hubbard was in custody because of 1

his indictment for illegal entry into the United States, and a false claim of citizenship. 

United States v. Hubbard, No. 3:06-cr-00004 (D.Virgin Islands filed Jan. 10, 2006). The

Magistrate Judge found Hubbard incompetent to stand trial and dismissed the charges on

May 25, 2009. 

2

Since this opinion is wholly without precedential value, we write solely for the

benefit of the parties who are familiar with the factual and procedural history of this case. 

We will dismiss the appeal. 

Rudolph Hubbard appeals the judgment of May 18, 2007, ordering a special

assessment of $10.00 and restitution in the amount of $181.00 following his earlier plea

of nolo contendere to destruction of government property. On June 4, 2008, Hubbard 1

filed for an extension of time to file his notice of appeal. The District Court granted the

motion on February 4, 2009. 

“An appeal permitted by law as of right from a district court to a court of appeals

may be taken only by filing a notice of appeal with the district clerk within the time

allowed by Rule 4.” Fed.R.App.P. 3(a)(1). “In a criminal case, a defendant’s notice of

appeal must be filed in the district court within 14 days after the later of: (i) the entry of

either the judgment or the order being appealed; or (ii) the filing of the government’s

notice of appeal.” Fed.R.App.P. 4(b)(1)(A). Rule 4 goes on to state the following:

Upon a finding of excusable neglect or good cause, the

district court may--before or after the time has expired, with

or without motion and notice--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).
3

Fed.R.App.P. 4(b)(4). 

The District Court’s decision to grant an extension of time to appeal is reviewed

for an abuse of discretion. See Ramseur v. Beyer, 921 F.2d 504, 506 n.2 (3d Cir. 1990). 

Because Hubbard filed his motion for extension one year and sixteen days after the court

entered judgment on the docket, there is no question that Hubbard’s motion for an

extension of time was filed well after the statutory period for such motions expired. The

threshold question, therefore, is whether the District Court abused its discretion in

granting Hubbard’s motion for an extension of time. We conclude that it did. 

We have consistently given a strict interpretation to the filing deadline specified in

Rule 4. See, e.g., United States v. Carelock, 459 F.3d 437, 441 & n.7 (3d Cir. 2006). 

Rule 4 plainly states that a motion for an extension of time to file a notice of appeal

cannot be granted after the thirty-day grace period has expired. The language articulating

this deadline is not precatory. As a result, it is clear that the District Court abused its

discretion in granting a motion that was not compliant with Rule 4. Moreover, because

the District Court exceeded the boundaries of its discretion in granting the motion to

extend the filing deadline, Hubbard’s notice of appeal is rendered a nullity. For this

reason, we will dismiss this appeal.