US v. Frank Bailey

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:07-cr-00559-RDB-1 Copies to all parties and the district court. [999755198]. [13-7863]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-7863

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANK BAILEY,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:07-cr-00559-RDB-1)

Submitted:

January 14, 2016

Decided:

February 16, 2016

Before KING, GREGORY, and WYNN, Circuit Judges.

Dismissed and remanded by unpublished per curiam opinion.

John J. Korzen, Director, Lauren D. Emery, Joseph B. Greener,
Third-Year Law Students, Appellate Advocacy Clinic, WAKE FOREST
UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for
Appellant.
Rod J. Rosenstein, United States Attorney, Michael
C. Hanlon, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Frank Bailey seeks to appeal the district court’s January
17, 2013, order dismissing his 28 U.S.C. § 2255 motion.

On

January 22, 2013, five days after the dismissal of his § 2255
motion, Bailey wrote the district court.

The January 22 letter,

construed liberally and in a manner consistent with the views of
both Bailey and the government, is properly characterized as a
motion

to

alter,

amend,

or

otherwise

seek

relief

district court’s dismissal of the § 2255 motion. 1
district

court

has

not

yet

ruled

on

the

pending

from

the

Because the
January

22

motion, Bailey’s October 29, 2013, letter to the Clerk of this
Court, which was construed as a notice of appeal, is premature
and has no effect.

See Griggs v. Provident Consumer Disc. Co.,

459 U.S. 56, 61 (1982).
We therefore dismiss the appeal as premature and remand the
case to the district court so that it may rule upon the January
22 motion.

See, e.g., United States v. Rowe, 872 F.2d 420 (4th

Cir. 1989) (unpublished table decision).

1

Should the district

Bailey’s appointed appellate counsel asserts that the
January 22 motion is a motion under either Rule 59 or Rule 60 of
the Federal Rules of Civil Procedure, while the government
asserts that the motion should be construed as a motion under
Rule 59. See Appellant’s Br. at 1; Appellee’s Br. at 9 n.1. We
need not decide whether the motion falls under Rule 59 or Rule
60 at this juncture, however, because either construction would
lead us to the same result. See Fed. R. App. P. 4(a)(4)(A).

2

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court rule adversely on the January 22 motion, Bailey may at
that

time

file

a

timely

notice

of

appeal

from

the

court’s

dismissal of the § 2255 motion, the denial of the January 22
motion, or both. 2

See Cooper v. Astrue, 480 F. App’x 724, 724

(4th Cir. 2012).

DISMISSED AND REMANDED

2

We suggest that the district court consider appointing
counsel for Bailey, to assist his handling of the January 22
motion proceedings and to place this matter in a proper
procedural posture. See 18 U.S.C. § 3006A(a)(2)(B).

3