IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 00-30026

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MICHAEL O’SHEA HEARD,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Louisiana

(98-CR-30011-1)

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December 7, 2000

Before POLITZ, SMITH, and PARKER,

Circuit Judges.

PER CURIAM:*

Michael Heard was sentenced on October

20, 1999, and the court entered the judgment

on October 26, 1999. The court appointed an

attorney on October 25, 1999. Heard filed no

motions or notices of appeal after the entry of

the judgment until December 21, 1999. The

district court granted his motion for out-oftime appeal on January 3, 2000, and Heard

filed his appeal that day.

I.

“A timely notice of appeal . . . is a prerequisite to our exercise ofjurisdiction.” United States v. Winn, 948 F.2d 145, 153 (5th Cir.

* Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be

published and is not precedent except under the

limited circumstances set forth in 5TH CIR. R.

47.5.4.
2

1991). Under FED. R. APP. P. 4(b), a defendant has ten days after the entry of the

judgment being appealed to file his notice of

appeal. Rule 4(b)(4) allows a district court to

extend the time for filing for an additional thirty daysif it finds “excusable neglect” or “good

cause.” 

Heard waited over forty days to move for

an out-of-time appeal. In United States v.

Awalt, 728 F.2d 704, 705 (5th Cir. 1984), we

held that “[c]ourts cannot extend the time period beyond the forty-day time period

prescribed by Rule 4(b).” A “late notice or

some other filing evidencing an intention to

appeal must be filed within the forty-day

period.” Id.

II.

We have treated the appointment ofcounsel

asthe equivalent ofthe grant of an out-of-time

appeal. See United States v. Lister, 53 F.3d

66 (5th Cir. 1995); United States v. Quimby,

636 F.2d 86 (5th Cir. Unit A Feb. 1981). In

Quimby, this court treated the district court’s

authorization for defendant to proceed in

forma pauperis on appealtwelve days afterthe

entry of judgment as a finding of excusable

neglect. 636 F.2d at 89. Lister extended this

reasoning to find a court’s ruling on

defendant’s motion for appointment of substitute appellate counsel tantamount to a finding of excusable neglect. 52 F.3d at 68. 

Even this liberal construction, however,

does not assist Heard. Both Quimby and Lister filed their notices of appeal within the

forty-day limit. Heard filed no motion within

thistime, and Awalt plainly indicatesthat some

filing within the forty-day period is necessary

for the court even to consider extending the

time for excusable neglect. Thus, the district

court erred in granting the motion for out-oftime appeal.

Even if the time for filing a motion for outof-time appeal had expired, the district court

could have granted an appeal pursuant to 28

U.S.C. § 2255.2 See Mack v. Smith, 659 F.2d

23, 25-26 (Former 5th Cir. Oct. 1981). Cases

in which § 2255 motions have essentially allowed out-of-time appeals generally allege ineffective assistance of counsel. See, e.g., United States v. Lankford, 196 F.3d 563, 569 (5th

Cir. 1999), cert. denied, 120 S. Ct. 1984

(2000); United States v. Clark, 193 F.3d 845,

846 (5th Cir. 1999); Barrientos v. United

States, 668 F.2d 838, 842 (5th Cir. 1982);

Mack, 659 F.2d at 25. There is no allegation

of ineffective assistance. 

Therefore, because Heard failed to file any

motion or notice of appealwithin the forty-day

period afforded by the extension, we find no

ground on which the district court properly

could base its motion to grant an out-of-time

appeal. We therefore DISMISS the appeal for

want of jurisdiction.

2

 The relevant portion of the statute reads:

If the court finds . . . that there has been

such a denial or infringement of the

constitutional rights of the prisoner as to

render the judgment vulnerable to collateral

attack, the court shall vacate and set the

judgment aside and shall discharge the

prisoner or resentence him or grant a new

trial or correct the sentence as may appear

appropriate.