Professional Documents
Culture Documents
2d 36
521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct.
282, 288, 4 L.Ed.2d 259 (1960)).
2
Mr. Senjuro argues that he did not receive timely notice of the entry of
judgment in this case, but this does not obviate the need for a timely notice of
appeal or a timely request for an extension. See Fed.R.Civ.P. 77(d) ("Lack of
notice of the entry by the clerk does not affect the time to appeal or relieve or
authorize the court to relieve a party for failure to appeal within the time
allowed, except as permitted in Rule 4(a) of the Federal Rules of Appellate
Procedure."). See also Silvia v. Laurie, 594 F.2d 892, 893 (1st Cir.1979) (while
failure to receive notice may constitute excusable neglect allowing the district
court to extend the time for appeal, a request for extension of time prior to the
end of the thirty-day grace period is a prerequisite to relief); Mayfield v. United
States Parole Comm'n, 647 F.2d 1053, 1055 (10th Cir.1981) (request for
extension of time to file notice of appeal must be made prior to the end of the
thirty-day grace period).
APPEAL DISMISSED.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause therefore
is ordered submitted without oral argument
1
The order from which Mr. Senjuro seeks to appeal was entered on January 31,
1991. The docket sheet indicates that the order was mailed to all counsel and
the order contains a certificate of mailing to Mr. Senjuro. On March 8, 1991,
the district court docketed a letter from Mr. Senjuro inquiring about the status
of his case. On March 15, 1991, Mr. Senjuro's letter constituting his notice of
appeal was filed, some forty-three days after the entry of judgment
Mr. Senjuro's letter merely indicates his desire to appeal and may not be
deemed a motion for an extension of time under Fed.R.App.P. 4(a)(5). Neither
a bare notice of appeal nor its functional equivalent " 'should be construed as a
motion for extension of time, where no request for additional time is manifest.'
" Wilder v. Chairman of the Central Classification Bd., 926 F.2d 367, 371 (4th
Cir.1991) (quoting Shah v. Hutto, 722 F.2d 1167, 1168-69 (4th Cir.1983) (en
banc), cert. denied, 466 U.S. 975, 104 S.Ct. 2354, 80 L.Ed.2d 827 (1984)). Nor
may the filing of Mr. Senjuro's letter noting his appeal be viewed "as
tantamount to the granting of the requisite extension." Mayfield v. United
States Parole Comm'n, 647 F.2d 1053, 1055 (10th Cir.1981)