1

 Rule 4(c) of the Federal Rules of Appellate Procedure creates a prison mailbox rule for notices of appeal filed in either

civil or criminal cases. Under that rule, “the notice is timely if it is deposited in the institution’s mail system on or before

the last day for filing.” 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA, )

)

vs. ) No. 3:03-CR-0078-N (01)

) 

ANDRE LYNN FORD, ID # 29802-177, )

Defendant. ) Referred to U.S. Magistrate Judge

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Pursuant to the provisions of 28 U.S.C. § 636(b), and the Order of Reference dated August

6, 2009, this action has been referred for determination of whether the Court should extend

defendant’s time for filing an appeal under Fed. R. App. P. 4(b)(4).

I. BACKGROUND

On January 22, 2008, the Court entered an order reducing the defendant’s sentence pursuant

to 18 U.S.C. § 3582(c)(2). On February 12, 2009, the Court received his pro se notice of appeal of

that order and transmitted it to the Fifth Circuit Court of Appeals. After concluding that the

defendant filed his notice of appeal on February 12, 2009, seven days after it was due, the Fifth

Circuit Court of Appeals remanded the appeal on April 29, 2009, “for a determination whether the

untimely filing of the notice of appeal was due to excusable neglect or good cause.” 

In response to a questionnaire, the defendant averred that he placed his Notice of Appeal in

the prison mail system with correct postage on January 28, 2009, and expected it to be mailed the

next day.1

 He also claimed that any delay in mailing was due to neglect on the part of the institution.

To the extent the defendant’s notice of appeal was untimely filed, the Court should find good cause

to grant him additional time because he promptly drafted his appeal and gave it to prison authorities

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with sufficient postage for mailing. See Fed. R. App. P. 4(b)(4).

II. RECOMMENDATION

The Court should find good cause to grant the defendant an extension of time under Fed. R.

App. P. 4(b)(4) to file his February 12, 2009 notice of appeal. Because the granting of such

additional time makes his appeal timely, the Court should notify the Fifth Circuit Court of Appeals

of its finding and resulting extension of time and return the case for further proceedings as may be

appropriate. 

SIGNED this 24th day of August, 2009.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of these findings, conclusions and recommendation shall be served on all parties in

the manner provided by law. Any party who objects to any part of these findings, conclusions and

recommendation must file specific written objections within 10 days after being served with a copy.

See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify

the specific finding or recommendation to which objection is made, state the basis for the objection,

and specify the place in the magistrate judge’s findings, conclusions and recommendation where the

disputed determination is found. An objection that merely incorporates by reference or refers to the

briefing before the magistrate judge is not specific. Failure to file specific written objections will

bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate

judge that are accepted or adopted by the district court, except upon grounds of plain error. See

Douglass v. United Servs. Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

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