US v. Antonio Germaine Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999477437-3] Originating case number: 4:02-cr-00579-CWH-1 Copies to all parties and the district court/agency. [999591534]. Mailed to: Johnson. [14-7640]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7640

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO GERMAINE JOHNSON,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence.
C. Weston Houck, Senior District
Judge. (4:02-cr-00579-CWH-1)

Submitted:

April 24, 2015

Decided:

May 28, 2015

Before MOTZ, DIAZ, and FLOYD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Antonio Germaine Johnson, Appellant Pro Se. Robert Frank Daley,
Jr., Assistant United States Attorney, Columbia, South Carolina;
William E. Day, II, Assistant United States Attorney, Florence,
South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Antonio Germaine Johnson seeks to appeal his 2003 criminal
judgment

imposed

following

his

guilty

plea

to

conspiracy

to

distribute and to possess with intent to distribute 50 grams or
more of cocaine base, and five kilograms or more of cocaine, in
violation of 21 U.S.C. § 846 (2012).
judgment on May 21, 2003.

The district court entered

At that time, Rule 4(b)(1)(A) of the

Federal Rules of Appellate Procedure required a defendant in a
criminal case to file his notice of appeal within ten days of
the entry of judgment. 1

With or without a motion, upon a showing

of excusable neglect or good cause, the district court may grant
an extension of up to thirty days to file a notice of appeal.
Fed. R. App. P. 4(b)(4); United States v. Reyes, 759 F.2d 351,
353 (4th Cir. 1985).
Johnson filed his notice of appeal, at the earliest, on
October 8, 2014. 2

Because Johnson failed to file a timely notice

of appeal or to obtain an extension of the appeal period, we
1

Rule 4 was amended effective December 1, 2009, to
establish a 14-day appeal period.
Fed. R. Crim. P. 4(b)(1)(A)
(2009).
2

Johnson’s notice of appeal was undated.
However, he
included a certificate of service stating that he mailed the
notice of appeal to the United States Attorney on October 8,
2014.
We presume that this is the earliest date Johnson could
have delivered his notice of appeal to prison officials for
mailing to the court. Fed. R. App. P. 4(c)(1); Houston v. Lack,
487 U.S. 266, 276 (1988).

2

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dismiss

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the

appointment

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appeal
of

as

counsel

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untimely. 3
is

denied.

Johnson’s
We

dispense

motion

for

with

oral

argument because the facts and legal contentions are adequately
presented in the materials before this court.
DISMISSED

3

We note that the appeal period in a criminal case is not a
jurisdictional provision, but, rather, a claim-processing rule.
United States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009).
Because
Johnson’s
appeal
is
inordinately
late,
and
its
consideration is not in the best interest of judicial economy,
we exercise our inherent power to dismiss it. United States v.
Mitchell, 518 F.3d 740, 744, 750 (10th Cir. 2008).

3