United States v. Wiley

In United States v. Wiley, No. 23-60068 (5th Cir. Feb. 2, 2024) (unpublished), the Fifth Circuit affirmed the district court’s decision to deny Wiley’s request for permission to file a late notice of appeal.

In criminal cases, a defendant must file their notice of appeal within 14 days of the entry of the judgment or order they wish to appeal. Fed. R. App. P. 4(b)(1). But in Wiley’s case, he filed his notice of appeal 20 days after that deadline.

The district court held an evidentiary hearing on the issue, where it heard testimony from Wiley, Wiley’s mother, and Wiley’s former attorney. After the hearing, the court denied Wiley’s motion because Wiley had failed to provide an adequate explanation for filing an untimely notice of appeal.

Even on appeal, Wiley still offered “no reasonable explanation for missing the deadline.” He knew he had the right to appeal, yet he never timely asked counsel to file a notice of appeal. Instead, he waited until 12 days after the deadline to even attempt to contact his attorney. (NB: Compare this to United States v. Tighe, issued about a week before Wiley, where the Fifth Circuit found ineffective assistance of counsel because the defendant’s attorney failed to consult with him about his right to appeal.)

Wiley attempted to explain his delay by pointing to his medical issues and the holiday season that made it difficult for him to retain appellate counsel. The Fifth Circuit rejected these arguments by noting that Wiley’s trial counsel never moved to withdraw during that period, so Wiley could at any time have asked trial counsel to file the notice of appeal — he did not need to wait for appellate counsel.

In closing, the Fifth Circuit emphasized this point: “a district court may not grant a party permission to file a late notice of an appeal simply because he requests it and offers reasons in support of granting his request. Rule 4 demands more. That means the district court must find excusable neglect or good cause to grant a party’s request to file a late notice of appeal.”