FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 16, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-14400

Non-Argument Calendar

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D.C. Docket No. 99-00022-CR-RH-WCS

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

DANIEL WRIGHT,

Defendant-Appellant.

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Appeal from the United States District Court 

for the Northern District of Florida

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 (May 16, 2005)

Before TJOFLAT, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

Daniel Wright, proceeding pro se, appeals from the district court’s denial of

his motion for leave to file a belated appeal from the denial of his motion for a
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new trial, which he had filed pursuant to Fed. R. Crim. P. 33 (“Rule 33 motion”). 

Wright’s Rule 33 motion sought a new trial based on his claims of both newly

discovered evidence and newly discovered facts. The district court denied

Wright’s Rule 33 motion on February 21, 2001, though its order addressed only

Wright’s newly discovered evidence claims without mention of his “newly

discovered facts” claim relating to the trial testimony of Charles Williams. 

In August 2004, more than three years after the district court denied his

Rule 33 motion, Wright filed a motion for leave to file a belated notice of appeal

from that denial. In that motion, Wright argued that he never received notice of

the denial of his Rule 33 motion because the copy that was mailed to him was

returned to the court as undeliverable. The district court denied Wright’s motion

for leave to file a belated appeal.

On appeal, Wright argues that the district court abused its discretion in

denying his motion for leave to file a belated notice of appeal from the denial of

his Rule 33 motion. Wright also argues that the district court erred in failing to

resolve his newly discovered facts claim as to the testimony of government

witness Williams. He asserts that we should issue a writ of mandamus, instructing

the district court to resolve this claim for purposes of finality, pursuant to Clisby v.

Jones, 960 F.2d 925 (11th Cir. 1992) (en banc).
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BELATED APPEAL

We review the decision on a motion for an extension of time to appeal for

an abuse of discretion. In re Old Naples Sec., Inc., 223 F.3d 1296, 1302 n.7 (11th

Cir. 2000). “In a criminal case, a defendant’s notice of appeal must be filed in the

district court within 10 days after” the entry of the order being appealed. Fed. R.

App. P. 4(b)(1)(A)(i). Although the clerk of court must provide notice to the

defendant regarding any order entered on any post-arraignment motion, a clerk’s

failure to do so “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). However, upon a finding that the failure to file during the original

period resulted from “excusable neglect or good cause”, the district court may

authorize an extension, but only for a period not to “exceed 30 days from the

expiration of time otherwise prescribed by this Rule 4(b).” Fed. R. App. P.

4(b)(4); see also, United States v. Grant, 256 F.3d 1146, 1150-51 (11th Cir. 2001)

(“Grant’s second notice of appeal, however, was filed . . . more than 30 days late

and therefore does not fall within the Rule 4(b)(4) window.”). In addition to Rule

4(b)(4), we also recognize the “unique circumstances doctrine” which excuses

failure to abide by time limitations where the failure is caused by the litigant’s
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reasonable reliance on a judicial officer’s specific assurance. See Jackson v.

Crosby, 375 F.3d 1291, 1297 (11th Cir. 2004).

Wright cannot satisfy the criteria for any of the exceptions to the time

limitation for filing a notice of appeal. Wright did not file his notice of appeal

within the ten days of the district court’s judgment, nor within an additional thirty

days beyond that period, precluding application of Rule 4(b)(4). Nor can Wright

rely on the unique circumstances doctrine, as Wright’s did not rely upon any

“specific assurance by a judicial offer” in failing to timely file his notice of appeal. 

See Vencor Hosps. v. Standard Life & Accident Ins. Co., 279 F.3d 1306, 1312

(11th Cir. 2002) (“Crucial to the application of the unique circumstances doctrine

is the occurrence of a judicial action upon which a party relies in failing to file a

timely notice of appeal. As a result, the mere failure of the district court clerk's

office to serve Appellant with notice . . . does not constitute a judicial assurance

or action sufficient to warrant relief under the unique circumstances doctrine.”). 

We thus conclude that the district court did not abuse its discretion in denying

Wright’s motion to file a belated notice of appeal from the denial of his Rule 33

motion. 

MANDAMUS
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The issuance of a writ of mandamus is “an extraordinary remedy, to be

reserved for extraordinary situations.” United States v. Noriega, 917 F.2d 1543,

1546 n.3 (11th Cir. 1990) (quotation omitted). The party seeking mandamus bears

the burden of demonstrating a “clear and indisputable right to issuance of the

writ.” Id.

We have exercised our supervisory powers to instruct district courts to

resolve all claims for relief raised in a habeas corpus petition regardless of whether

habeas relief is ultimately granted or denied. Clisby, 960 F.2d at 936. However,

our holding in Clisby arose out of concern for the increasingly piecemeal nature of

federal habeas corpus litigation, and its holding is limited by its own terms to

habeas cases. Id. Clisby thus provides no basis for a writ of mandamus regarding

the district court’s failure to specifically address Wright’s Rule 33 claim relating

to government witness Williams.

CONCLUSION

Upon review of the record and the parties’ briefs, we find no reversible

error. Accordingly, we affirm the district court’s denial of Wright’s motion for

leave to file a belated appeal from the denial of his Rule 33 motion.

AFFIRMED.