## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 00-30026

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### M ICHAEL 

### O’S HEA 

### H EARD



### ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Louisiana

(98-CR-30011-1)

_________________________ December 7, 2000

Before POLITZ, SMITH, and PARKER,

Circuit Judges.

PER CURIAM: *

Michael H e ard 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 t imely notice of appeal

. . . is a prerequisite to our exercise of jurisdiction.” United States v. Winn, 948 F.2d 145, 153 (5th Cir. * Pursuan t to 5 TH C IR. 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 5 TH C IR

. R.

47.5.4.2

1991). Under F E D

. R. A PP

. P. 4( b), a defendant has ten da ys aft er 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 days if it finds “excusable neglect” or “good

cause.”

Heard waited over forty days to move for

an out-of-time ap p eal. In U nited States v.

Awalt

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

held that “[c]ourts cannot extend the time period beyond the forty-d ay t ime period

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

some other filing evi dencing an intention to

appeal must be filed within the forty-day

period.” Id.

II.

We have treated the appointment of counsel

as the equivalent of the grant of an out-of-time

appeal. S ee United States v. Lister, 53 F.3d

66 (5th C ir. 1995); U

nited 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 i n

forma pauperis on appeal twelve days after the

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 substi tute 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 List er filed their notices of appeal within th e

forty-day limit. Heard filed no motion within

this time, and Awalt plainly indicates that some

filing within the forty-day period is necessary

for the court e ven to consider extending the

time for ex c usable 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 hav e granted an appeal pursuant to 28

U.S.C. § 2255. 2 S ee Mack v. Smith, 659 F.2d

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

in which § 2 255 motions have essentially allowed out-of-time appeals generally allege ineffective assistance of counsel. S ee, 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 appeal within the forty-day

period afforded by the extensio n

, we find no

ground on which the district court properly

could base its motion to grant an out-of-t ime

appeal. We therefore DISMISS the appeal for

want of jurisdiction.

2 The relevant portion of the statute reads:

If the court fin ds . . . that there has been

such a denial or infringeme n t 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 a s may appear

appropriate.