PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-6681

MICHAEL AARON LITTLE,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Richard L. Voorhees, District Judge.

(CR-86-18-C; CR-87-19-C)

Argued: October 26, 2004

Decided: December 22, 2004

Before WILKINS, Chief Judge, WILLIAMS, Circuit Judge,

and Glen E. CONRAD, United States District Judge for the

Western District of Virginia, sitting by designation.

Authorization denied to file a successive § 2255 motion; petition for

§ 2241 writ dismissed without prejudice by published opinion. Judge

Williams wrote the opinion, in which Chief Judge Wilkins and Judge

Conrad joined. 

COUNSEL

ARGUED: Neal Lawrence Walters, Charlottesville, Virginia, for

Appellant. Douglas Scott Broyles, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Ethan Greene, Third Year Law

Student, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Appellate Litigation Clinic, Charlottesville, Virginia, for Appellant. Robert

J. Conrad, Jr., United States Attorney, Charlotte, North Carolina, for

Appellee. 

OPINION

WILLIAMS, Circuit Judge: 

In a case presenting several procedural conundrums, Michael Little, a federal prisoner, appeals the district court’s denial of his motion

under former Federal Rule of Criminal Procedure 35(a) to correct an

illegal sentence.1 We construe Little’s Rule 35(a) motion as a request

to file a successive habeas petition under 28 U.S.C.A. § 2244 (West

1994 & Supp. 2004) and as a request for sentencing credit under 28

U.S.C.A. § 2241 (West 1994). We deny Little’s request for authorization under § 2244 to file a successive motion under 28 U.S.C.A.

§ 2255 (West 1994 & Supp. 2004), and we dismiss Little’s § 2241

claim without prejudice for Little to refile in the proper jurisdiction.

I.

Michael Little is a federal prisoner with a long history of litigation

in this court.2 Little originally pleaded guilty to one count of posses1Little was sentenced prior to the enactment of the United States Sentencing Guidelines. He brought this motion under former Federal Rule

of Criminal Procedure 35(a), which is available to individuals whose

offenses were committed prior to November 1, 1987. See United States

v. Landrum, 93 F.3d 122, 125 (4th Cir. 1996). That Rule allowed an individual to bring a motion to correct an illegal sentence at any time. Rule

35(a) currently provides that "[w]ithin 7 days after sentencing, the court

may correct a sentence that resulted from arithmetical, technical, or other

clear error." Fed. R. Crim. P. 35(a). Because this appeal deals only with

former Rule 35(a), our reference to Rule 35(a) in this opinion is to the

former Rule. 

2Prior to this case, Little had litigated five cases in this court relating

to his conviction and sentence. See United States v. Little, No. 01-6355,

2 UNITED STATES v. LITTLE
sion with intent to distribute cocaine, in violation of 21 U.S.C.A.

§ 841(a)(1) (West 1999), on April 8, 1986, and was sentenced to ten

years imprisonment. The April 1986 conviction stemmed from the

seizure of 802.26 grams of cocaine and $87,740 in cash from Little’s

residence in Charlotte, North Carolina on January 10, 1986. 

Almost a year later, on March 2, 1987, Little was indicted, along

with fifteen other individuals, in a new forty-count indictment. Nineteen counts related to Little. Relevant here, Count One alleged that

Little violated 21 U.S.C.A. § 846 (West 1999), by engaging in a conspiracy to possess with intent to distribute cocaine from May 1985 to

April 1986; Count Thirty-Three charged Little with violating

§ 841(a)(1) by possessing with intent to distribute three and one-half

kilograms of cocaine on January 10, 1986; and Count Forty charged

Little with violating 21 U.S.C.A. § 848(a) (West 1999) by engaging

in a Continuing Criminal Enterprise (CCE) from May 1985 to April

1986. The cocaine charged in Count Thirty-Three was seized from the

residence of Gary Clark, one of Little’s associates and codefendants.

Following a jury trial, on August 19, 1987, Little was convicted of

all nineteen counts in the indictment and sentenced to thirty years

imprisonment. The thirty-year sentence was to run concurrent with

the time he was already serving for the April 1986 conviction. Little’s

convictions and sentences were affirmed on direct appeal. See United

States v. Wingate, No. 87-5165, 1988 WL 83334 (4th Cir. Aug. 4,

1988) (unpublished). 

Since then, Little has filed numerous motions seeking postconviction relief. Although an extensive review of Little’s endeavors

is unnecessary, it suffices to note that the district court found the Rule

35(a) motion giving rise to this appeal, filed on June 17, 2002, was

2001 WL 574834 (4th Cir. May 29, 2001) (unpublished) (§ 2255

motion); Little v. United States, No. 99-6235, 1999 WL 587894 (4th Cir.

Aug. 5, 1999) (unpublished) (§ 2241 writ); United States v. Little, No.

97-6897, 1997 WL 592815 (4th Cir. Sep. 24, 1997) (unpublished) (Fed.

R. Crim. P. 35(a)); United States v. Little, No. 93-6823, 1994 WL 67860,

(4th Cir. Mar. 4, 1994) (unpublished) (§ 2255 motion); United States v.

Wingate, No. 87-5165, 1988 WL 83334 (4th Cir. Aug. 4, 1988) (unpublished) (direct appeal). 

UNITED STATES v. LITTLE 3
Little’s seventh attempt at post-conviction relief.3

 Little’s Rule 35(a)

motion alleged (1) that his convictions and sentences for both Count

One and Count Forty in 1987 were "illegal" within the meaning of

Rule 35(a) in light of Rutledge v. United States, 517 U.S. 292, 307

(1996) (holding that double jeopardy precluded conviction for both

conspiracy and engaging in a CCE when the conspiracy was used to

prove the CCE); and (2) that the Bureau of Prisons (BOP) violated the

Double Jeopardy clause by refusing to grant him sentencing credit for

the one year served between the 1986 and 1987 convictions.4 This latter claim was based on Little’s contention that the same cocaine was

used to support both his April 1986 conviction and Count ThirtyThree of the 1987 indictment. 

On January 10, 2003, the United States District Court for the Western District of North Carolina issued an order denying Little’s motion.

Despite Little’s denomination of the motion as one arising under

criminal Rule 35(a), the district court construed it otherwise, finding

that the claims were appropriately characterized as civil in nature. The

district court first held that Little’s request for one year of credit on

his sentence arose under 18 U.S.C.A. § 35685 and should be denied

because Little failed to exhaust his administrative remedies. The district court construed Little’s Rutledge claim as a constitutional attack

on his conviction and found that, because Little had previously filed

3Little’s June 17 filing was misdocketed, and does not appear in the

record. Little refiled the motion in November 2002. At the time Little

refiled the motion he was housed in a federal medical center in Texas.

4Little’s motion raised other claims not relevant on appeal. As mentioned, supra note 3, Little’s original motion is not included in the record

in this case; however, his supplemental motion illuminating his Rutledge

claim is in the record. As discussed infra, the district court viewed Little’s motion as raising two claims, one under Rutledge and one for sentencing credit. 

5Section 3568 provides, in relevant part, "[t]he Attorney General shall

give any such person credit toward service of his sentence for any days

spent in custody in connection with the offense or act for which sentence

was imposed." 18 U.S.C.A. § 3568. That section was replaced in the

Sentencing Reform Act of 1984 by 18 U.S.C.A. § 3585(b) (West 2000),

however, "[s]ection 3568 applies to offenses committed before November 1, 1987." Randall v. Whelan, 938 F.2d 522, 524 n. 2 (4th Cir. 1991).

4 UNITED STATES v. LITTLE
§ 2255 motions, it lacked jurisdiction to consider Little’s claim.

Instead, the district court instructed Little to request authorization to

file a successive § 2255 motion in this court. The district court also

warned Little that he would be subject to monetary penalty if he continued filing frivolous motions. 

The district court mailed its January 10 order to FCI Butner, Little’s former address. Little, however, was at that time being housed

at a federal medical center in Texas and the order was returned to the

court as undelivered.6 The district court resent the order, and Little

received some correspondence from the district court on February 10,

2003. On February 12, 2003, Little sent a letter to the district court

clerk, requesting an update on the status of his case. Little stated that,

although he "received a ruling from the Court" on February 10, he

believed that this order addressed one of his prior motions. He stated

that "[t]o date no response has been received to [the Rule 35(a)]

motion." (J.A. at 34A.) Little requested that the district court consider

his Rule 35(a) motion and also noted that the court had sent recent

correspondence to his former address. Little sent a similar letter to the

district judge himself, stating that "you[ ] may have been subjected to

reviewing a dated motion," and that "[a] more recent motion [,the

Rule 35(a) motion], however, was filed on June 17, 2002." (J.A. at

34C.) On April 11, 2003, the district court mailed the January 10

order again, and Little received it on April 14, 2003. Seven days later,

on April 21, Little filed a notice of appeal with the district court. 

The district court construed Little’s April 21 notice of appeal as a

motion under Federal Rule of Appellate Procedure 4(b)(4) (FRAP),7

that is, a Motion for Leave to File Untimely Appeal. The district court

found that Little received the January 10 order on February 10, 2003,

but that he was confused as to its contents at that time.8 The district

6Regrettably, the Bureau of Prisons failed to notify the district court of

Little’s change of address. The district court also overlooked the new

address contained in Little’s pleadings. 

7Federal Rule of Appellate Procedure 4(b)(4) permits a district court,

with or without motion, to extend the 10 day appeals period for criminal

appeals by 30 days upon a showing of excusable neglect or good cause.

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

8Although the district court’s finding that Little received the order in

February is not relevant to our discussion, this finding is clearly erroneUNITED STATES v. LITTLE 5
court recognized the ten-day time limitation on filing an appeal in a

criminal case, and decided that it would "treat the April 11, 2003

remailing as starting the appeals period anew." (J.A. at 43.) With

April 12, 2003 as the start date of the ten-day period, the district court

considered Little’s April 21, 2003 pro se notice of appeal as timely.

On appeal, counsel was appointed for Little. 

II.

This case was originally placed on the oral argument calendar for

consideration of whether the district court had the power to republish

its January 10 order on April 11 to permit Little to effect a timely

appeal. Prior to oral argument, we requested supplemental briefing,

asking whether the claims in Little’s Rule 35(a) motion should be

construed as either a successive § 2255 motion or a § 2241 petition,

or both. Little argues that his claims are properly cognizable under

Rule 35(a), and that his appeal of the district court’s order was timely.

The Government contends that Little’s Rule 35(a) motion should be

construed as a § 2241 petition requesting sentencing credit. And,

because Little is currently housed in a federal medical center in

Texas, the Government requests that we dismiss Little’s § 2241 claim

for him to refile in the proper venue. In the alternative, the Government argues that, assuming Little’s motion is cognizable under Rule

35(a), the district court lacked the power to republish its January 10

order, and Little’s appeal of that motion would be untimely. 

For the reasons stated in Part III, we agree, in part, with the Government. We conclude that Little’s 35(a) motion raises claims that are

properly brought under § 2255 and § 2241. On Little’s § 2241 claim

for sentencing credit, the Western District of North Carolina is not the

proper venue to consider that claim because Little is currently incarcerated in a federal medical center in Texas. Accordingly, we dismiss

that claim without prejudice. Turning to Little’s § 2255 claim,

because Little has already litigated a § 2255 motion, we treat his

ous. The district court based this finding on what it thought was Little’s

concession in his April 21 notice of appeal that he received the order in

February. Little’s notice of appeal, however, specifically states that Little

did not receive the order until April 14. 

6 UNITED STATES v. LITTLE
appeal of the district court’s ruling in this case as a request for authorization to file a successive § 2255 motion and deny that request. For

the reasons discussed in Part IV, even if we were to credit Little’s

argument that his claims arise under Rule 35(a), we would lack jurisdiction to consider it because Little’s appeal of the denial of that

motion would be untimely. 

III.

Former Federal Rule of Criminal Procedure 35(a) provided that

"[t]he court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided

herein for the reduction of sentence." Fed. R. Crim. P. 35(a) (West

1976). Rule 35(a) motions are neither civil motions nor civil collateral

attacks on a conviction and sentence; instead, Rule 35(a) motions are

part of the direct appeal of the criminal conviction. Landrum, 93 F.3d

at 125. Because former Rule 35(a) has no time limitations, motions

brought under that Rule are limited to those requesting the correction

of illegal sentences. Hill v. United States, 368 U.S. 424, 430 (1962).

A sentence is not illegal within the meaning of Rule 35(a) if "[t]he

punishment meted out was not in excess of that prescribed by the relevant statute, multiple terms were not imposed for the same offense,

nor were the terms of the sentence itself legally or constitutionally

invalid in any other respect."9Id. When a federal prisoner files a Rule

35(a) motion raising claims that do not fit within its limited scope, we

will construe the claims under the appropriate motion or petition

heading. United States v. Pavlico, 961 F.2d 440, 443 (4th Cir. 1992)

(noting that a Rule 35(a) motion can be construed as a § 2255 motion

when the relief requested was available only under § 2255); see also

United States v. Winestock, 340 F.3d 200, 203 (4th Cir. 2003) (noting

"longstanding practice of courts to classify pro se pleadings from prisoners according to their contents, without regard to their captions.").

In this case, Little has alleged that his sentence and conviction for

both Count One (conspiracy) and Count Forty (CCE) is illegal under

9We have interpreted Hill’s third basis for a Rule 35(a) motion, sentences that are legally or constitutionally invalid in any other respect, to

implicate only sentences that are "ambiguous or internally contradictory." United States v. Pavlico, 961 F.2d 440, 443 (4th Cir. 1992). 

UNITED STATES v. LITTLE 7
Rutledge v. United States, 517 U.S. at 307 (1996), and that he was not

properly credited with time served on one of his sentences.10 We

address each claim in turn.

A.

The Rutledge Claim

In Rutledge, the Supreme Court held that § 846,11 conspiracy to distribute controlled substances, is a lesser-included offense of § 848,

continuing criminal enterprise.12 The Supreme Court further held that

10The record reveals that Little previously has raised both of these

claims. In 1993, before Rutledge issued, Little filed a § 2255 motion contending that he was improperly convicted of both conspiracy to distribute

a controlled substance and a continuing criminal enterprise. The district

court adopted the magistrate judge’s memorandum and recommendation

rejecting that claim. Little unsuccessfully raised a specific Rutledge argument in a 1997 Rule 35(a) motion. Little’s sentencing credit argument

was raised and rejected in his 1993 § 2255 motion. Because the question

of whether Little’s claims would be barred by res judicata or the law of

the case has not been raised by the Government and does not affect our

jurisdiction, we leave resolution of that question for future litigation. 

11The statute provides in full: 

Any person who attempts or conspires to commit any offense

defined in this subchapter shall be subject to the same penalties

as those prescribed for the offense, the commission of which was

the object of the attempt or conspiracy. 

21 U.S.C.A. § 846 (West 1999). 

12A continuing criminal enterprise is defined by statute as follows: 

A person is engaged in a continuing criminal enterprise if— 

(1) he violates any provision of this subchapter or subchapter

II of this chapter the punishment for which is a felony, and 

(2) such violation is a part of a continuing series of violations

of this subchapter or subchapter II of this chapter— 

(A) which are undertaken by such person in concert with five

or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other

position of management, and 

8 UNITED STATES v. LITTLE
the remedy in such cases is to vacate the conspiracy conviction and

any sentence attributed to that conviction.13 Little argues that he, too,

was convicted of both conspiracy and a continuing criminal enterprise, that either Count One or Count Forty of his 1987 conviction

must be vacated, and accordingly, he must be resentenced. In contending that his claim sounds within Rule 35(a), Little notes that

Rutledge relies on the Double Jeopardy clause. 

Our research reveals that only the Seventh Circuit, in United States

v. Canino, 212 F.3d 383, 384 (7th Cir. 2000), has addressed the exact

question of whether a post-conviction motion premised on a Rutledge

violation falls within Rule 35(a). See also United States v. Jeffers,

2004 WL 2453754 (7th Cir. 2004) (reaffirming the continuing vitality

of Canino). Explaining that Rule 35(a) "does not cover arguments that

the conviction is itself improper," that court held that a Rutledge violation implicated an inmate’s conviction, not his sentence. Id.; see

also Rutledge, 517 U.S. at 303 (finding that the "conviction amounts

to cumulative punishment not authorized by Congress") (emphasis

added). Accordingly, the Seventh Circuit found that the inmate’s

argument "is exactly the kind of argument knocked out by Hill[, 368

U.S. at 430], and properly so unless Rule 35(a) is to subsume the

entire law of collateral review." Id.

By its plain language, Rule 35(a) is limited to claims that a sentence itself is illegal, not that the conviction underlying a sentence is

infirm. Fed. R. Crim. P. 35(a). In contrast, § 2255 permits prisoners

"claiming the right to be released upon the ground that the sentence

was imposed in violation of the Constitution or laws of the United

States" to attack their conviction and sentence in federal court. 28

U.S.C.A. § 2255 (emphasis added); see Davis v. United States, 417

U.S. 333, 344 (1974) (rejecting argument that § 2255 motions could

(B) from which such person obtains substantial income or

resources. 

21 U.S.C.A. § 848(c). 

13The Supreme Court’s opinion affirmed the approach already in use

in this circuit. See United States v. Butler, 885 F.2d 195, 202 (4th Cir.

1989). 

UNITED STATES v. LITTLE 9
only attack a prisoner’s sentence because "[n]owhere in the history of

Section 2255 do we find any purpose to impinge upon prisoners’

rights of collateral attack upon their convictions.") (quotation marks

omitted). Little’s Rutledge claim attacks his conviction; Little alleges

that his conviction for Count One (conspiracy) must be vacated. Thus,

we agree with the Seventh Circuit and find that Little’s Rutledge

claim attacks his underlying conviction, not his sentence, and construe Little’s Rutledge claim as a § 2255 motion. To find otherwise

would be to expand the scope of Rule 35(a) in a manner that would

impermissibly infringe upon collateral review pursuant to § 2255. 

Little, however, has already filed a § 2255 motion, so he must first

request authorization to file a successive motion pursuant to

§ 2244(b)(3) before filing a § 2255 motion with the district court.

When a prisoner brings a motion that is better construed as a successive § 2255 petition, we will construe the prisoner’s brief on appeal

as a request for authorization to file a successive § 2255 petition.

Winestock, 340 F.3d at 208. Following that precedent here, we construe Little’s appellate brief as a request to file a successive § 2255

motion alleging his Rutledge claim. In order to obtain authorization

to file a successive § 2255 motion, a prisoner must show that his

claim is based on either: 

(1) newly discovered evidence that, if proven and viewed

in light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the

offense; or 

(2) a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was

previously unavailable. 

28 U.S.C.A. § 2255. 

Little has not argued that newly discovered evidence exists, and the

rule announced in Rutledge has not been made retroactive to cases on

collateral review. See Canino, 212 F.3d at 384; see also Underwood

v. United States, 166 F.3d 84, 87 n.2 (2d Cir. 1999) (noting Rutledge

does not announce a "new rule of constitutional law" because "[t]he

10 UNITED STATES v. LITTLE
double jeopardy and separation of powers principles on which Rutledge ultimately rests are not new"). Furthermore, Little’s § 2255

motion based on Rutledge is untimely because a § 2255 motion must

be filed within one year of the time that the Supreme Court first recognizes the constitutional right asserted. 28 U.S.C. § 2255 ¶ 6(3).

Therefore, we deny Little authorization to file a successive § 2255

motion with the district court.

B.

The Sentencing Credit Claim

Little’s second claim is that because the cocaine used to support his

1986 conviction was also used to support Counts One, Thirty-Three,

and Forty of the 1987 indictment, he is due sentencing credit for the

one year served in prison between the 1986 and 1987 convictions.

This claim is best characterized as an attack on the execution of his

sentence and not a collateral attack on his conviction. We have previously noted that challenges to the execution of a federal sentence are

properly brought under 28 U.S.C.A. § 2241.14 See In re Vial, 115 F.3d

1192, 1194 n.5 (4th Cir. 1997) (en banc). Little basically concedes

this point in his supplemental brief, but he contends that because his

claim rests upon a Double Jeopardy violation, it differs from other

§ 2241 challenges. We disagree. Challenging the execution of the sentence based on a perceived constitutional violation does not remove

Little’s claim from § 2241. See Taylor v. Sawyer, 284 F.3d 1143 (9th

Cir. 2002) (reviewing a claim that BOP failed to make a state sentence properly concurrent to a federal sentence under § 2241 even

though prisoner alleged BOP’s actions violated the Constitution). 

Thus, Little’s request for sentencing credit is properly brought

under § 2241, rather than Rule 35(a), and we must determine if Little’s appeal of the district court’s denial of this claim is properly

before us for review. Section 2241 is not subject to the procedural

requirements of § 2244(b), so Little was permitted to bring this claim

14That statute provides, in relevant part, that "[w]rits of habeas corpus

may be granted by the Supreme Court, any justice thereof, the district

courts and any circuit judge within their respective jurisdictions." 28

U.S.C.A. § 2241 (West 1994). 

UNITED STATES v. LITTLE 11
separately in the district court without first receiving authorization

from the circuit court. 

We must next determine whether Little’s appeal of the denial of his

§ 2241 petition was timely. Because section 2241 petitions are civil

actions, not criminal matters, the separate document requirement

applies. Federal Rule of Civil Procedure 58 requires that "[e]very

judgment and amended judgment must be set forth on a separate document." A district court’s failure to place the civil judgment on a separate document, even though the judgment was entered on the court’s

docket, precludes the beginning of the appeal period under Federal

Rule of Appellate Procedure 4(a) for one-hundred and fifty days. See

Quinn v. Haynes, 234 F.3d 837, 843 (4th Cir. 2000) see also Fed. R.

Civ. P. 58(b)(2). In this case, because the district court did not enter

its judgment on a separate document, the sixty-day time limitation for

filing an appeal in FRAP 4(a)(1)(B) did not commence on January 10,

and Little’s April 21 notice of appeal is timely.15

Turning to the merits of this claim, we begin with the axiom that

district courts are limited to granting habeas relief "within their

respective jurisdictions." 28 U.S.C. § 2241(a). As the Supreme Court

has explained, that statute requires "nothing more than that the court

issuing the writ have jurisdiction over the custodian." Braden v. 30th

Judicial Circuit Court, 410 U.S. 484, 495 (1973). Thus, "[w]henever

a § 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement." Rumsfeld v.

15Although the district court never entered a separate judgment below,

we need not remand the case for the issuance of a judgment that complies with Federal Rule of Civil Procedure 58. We continue to have jurisdiction to hear the appeal where "(1) the District Court clearly evidenced

its intent that the opinion and order from which an appeal was taken

would represent the final decision in the case; (2) a judgment of dismissal was recorded in the clerk’s docket; and (3) the appellees did not

object to the taking of the appeal in the absence of a separate judgment."

Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 690-91 (4th

Cir. 1978) (quotation marks omitted). Here, the district court intended its

January 10 order to be the final judgment, that order was recorded on the

docket, and the United States has not raised an objection to hearing the

appeal. 

12 UNITED STATES v. LITTLE
Padilla, 124 S. Ct. 2711, 2724 (2004). At the time Little refiled his

§ 2241 petition, he was confined in a federal medical center in Texas.

Accordingly, the district court was not the proper venue for Little’s

§ 2241 petition, and we must dismiss Little’s § 2241 petition without

prejudice for him to refile, if he so desires, in the proper United States

District Court. See Padilla, 124 S. Ct. at 2727 (ordering dismissal of

§ 2241 petition without prejudice). 

IV.

Little resists our characterization of his claims and contends that

they are properly cognizable under Rule 35(a). Even if we were to

assume that Little’s claims fall within Rule 35(a), we would lack

jurisdiction to consider those claims because Little failed to file a

timely appeal. Rule 35(a) motions are considered criminal motions

and are covered by FRAP 4(b), which provides "[i]n a criminal case,

a defendant’s notice of appeal must be filed in the district court within

10 days" of the entry of judgment. Fed. R. App. P. 4(b). FRAP 4(b)(4)

permits the district court, with or without motion, to extend the time

period to thirty days from the expiration of the ten-day period "[u]pon

a finding of excusable neglect or good cause." FRAP 4(b) includes no

other exceptions, and its provisions are "mandatory and jurisdictional." Browder v. Dep’t of Corr., 434 U.S. 257, 264 (1978). The district court found that Little moved to reopen the appeals period on

April 21, far outside the forty-day period allotted by FRAP 4(b)(4).

The district court then granted Little’s request and treated the April

11 mailing of the order as a republication to permit Little to effect a

timely appeal. Thus, assuming Little’s motion was proper under Rule

35(a), his appeal would be timely only if the district court were permitted to republish its January 10 order or if Little filed some document within the forty-day period that constituted a notice of appeal.

Little contends that his February 12, 2003 letter addressed to the

district court constituted a notice of appeal and that we need not

address the propriety of the district court’s republication order. Little

notes that this letter was sent within forty days of the judgment and

would be timely upon a showing of excusable neglect. We do not

believe his February 12, 2003 letter was a notice of appeal as required

by FRAP 3. 

UNITED STATES v. LITTLE 13
FRAP 3(c)(1) states 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. 

The requirements of FRAP 3 are mandatory and jurisdictional. Torres v. Oakland Scavenger Co., 487 U.S. 312, 315-16 (1988). To ameliorate the harshness of the jurisdictional bar, FRAP 3 "should be

liberally construed," and even when a party files a notice of appeal

"that is technically at variance with the letter of a procedural rule, a

court may nonetheless find that the litigant has complied with the rule

if the litigant’s action is the functional equivalent of what the rule

requires." Id. at 316-17. We have held that the policy of construing

notices of appeal liberally applies "especially" to pro se filings.

United States v. Garcia, 65 F.3d 17, 19 (4th Cir. 1995). This principle

"does not, however, excuse noncompliance with the Rule." Smith v.

Barry, 502 U.S. 244, 248 (1992). 

Little argues that his February 12th letter, liberally construed, suffices to meet the requirements of FRAP 3(c). We disagree. The letter

made no reference to the Fourth Circuit, or any circuit or appellate

court. Little’s letter was specifically addressed to the district court,

and requested action from that court. In fact, the word "appeal" does

not appear in the letter. Moreover, Little did not specify any order

from which he was appealing. Little admitted receiving an order on

February 10, 2003, but he believed that this order was responding to

a prior motion he had filed before the district court in 2001. Instead,

Little’s letter requested that the district court promptly address his

current Rule 35(a) motion. The entire purpose of Little’s letter was to

request that the district court take action upon his Rule 35(a) motion.

Accordingly, Little’s February 12, 2003, letter cannot constitute a

notice of appeal under FRAP 3(c). Thus, assuming Little’s motion

had been properly brought under Rule 35(a), his appeal of the denial

of that motion would be timely only if the district court had the power

to republish its January 10 order on April 11. 

14 UNITED STATES v. LITTLE
In United States v. Schuchardt, 685 F.2d 901 (4th Cir. 1982), we

held that we lacked jurisdiction to hear an untimely appeal from a

criminal conviction even though the defendant lacked notice of the

original order. We noted that the time limitations embodied in FRAP

4(b) were mandatory and jurisdictional and that Federal Rule of Criminal Procedure 49(c) was "generally interpreted" to "make the failure

of notice irrelevant to application of the jurisdictional rule" of FRAP

4(b). Id. at 902. Federal Rule of Criminal Procedure 49(c) provides:

When the court issues an order on any post-arraignment

motion, the clerk must provide notice in a manner provided

for in a civil action. Except as Federal Rule of Appellate

Procedure 4(b) provides otherwise, the clerk’s failure to

give notice does not affect the time to appeal, or relieve —

or authorize the court to relieve — a party’s failure to

appeal within the allowed time. 

Fed. R. Crim. P. 49(c)(3) (emphasis added). 

The second sentence of Rule 49(c) was added in 1966 specifically

to combat the courts’ practice of extending appeals periods when parties had failed to receive notice of a court’s order. See Fed. R. Crim.

P. 49 Advisory Committee Notes (explaining that the amendments

changed the prior general rule that "in the event of such failure or

delay ‘the time for taking an appeal runs from the date of later actual

notice or receipt of the clerk’s notice rather than from the date of

entry of the order’" and that FRAP 4(b) excusable neglect period

means there is "[n]o need . . . for an indefinite extension without time

limit beyond the 30 day period").16

Thus, we are compelled to find that, pursuant to FRAP 4(b), Rule

49(c) and our precedent in Schuchardt, the district court was not per16We note that an exception to the dictates of Rule 49(c) might lie

where necessary, as a ministerial matter, to effectuate the sound administration of justice in avoiding possible due process violations. See United

States v. Schuchardt, 685 F.2d 901, 902 (4th Cir. 1982) (noting that the

case did not "contain unique facts which alone excuse noncompliance

with the rule [that FRAP 4(b) is mandatory and jurisdictional].") No such

argument has been raised in this case. 

UNITED STATES v. LITTLE 15
mitted to republish its order in a criminal case so as to authorize Little

to effect a timely appeal. Little concedes this point in his opening

brief. Accordingly, because the district court lacked the power to

republish its January 10 order, even assuming that Little’s motion is

cognizable under Rule 35(a), his appeal would be untimely, and we

would lack jurisdiction to consider it. 

V.

In conclusion, we construe Little’s purported 35(a) motion as a

§ 2255 motion and a § 2241 petition for sentencing credit. We construe Little’s appeal of the denial of the § 2255 motion as a request

for authorization to file a successive § 2255 motion and deny that

request. Likewise, we dismiss the appeal of Little’s § 2241 claim

without prejudice to permit Little to file that claim in the appropriate

district court. Moreover, even were we to assume that Little’s motion

was proper under Rule 35(a), we would lack jurisdiction to consider

his appeal. 

AUTHORIZATION DENIED TO FILE A

SUCCESSIVE § 2255 MOTION;

PETITION FOR § 2241 WRIT DISMISSED

WITHOUT PREJUDICE

16 UNITED STATES v. LITTLE