            IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT
                                         _______________

                                           m 00-30026
                                         _______________



                                 UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                              VERSUS

                                   MICHAEL O’SHEA HEARD,

                                                             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,                    20, 1999, and the court entered the judgment
  Circuit Judges.                                    on October 26, 1999. The court appointed an
                                                     attorney on October 25, 1999. Heard filed no
PER CURIAM:*                                         motions or notices of appeal after the entry of
                                                     the judgment until December 21, 1999. The
   Michael Heard was sentenced on October            district court granted his motion for out-of-
                                                     time appeal on January 3, 2000, and Heard
                                                     filed his appeal that day.
   *
     Pursuant to 5TH CIR. R. 47.5, the court has                             I.
determined that this opinion should not be
                                                        “A timely notice of appeal . . . is a pre-
published and is not precedent except under the
                                                     requisite to our exercise of jurisdiction.” Unit-
limited circumstances set forth in 5TH CIR. R.
47.5.4.                                              ed States v. Winn, 948 F.2d 145, 153 (5th Cir.
1991). Under FED. R. APP. P. 4(b), a de-                    Even if the time for filing a motion for out-
fendant has ten days after the entry of the              of-time appeal had expired, the district court
judgment being appealed to file his notice of            could have granted an appeal pursuant to 28
appeal. Rule 4(b)(4) allows a district court to          U.S.C. § 2255.2 See Mack v. Smith, 659 F.2d
extend the time for filing for an additional thir-       23, 25-26 (Former 5th Cir. Oct. 1981). Cases
ty days if it finds “excusable neglect” or “good         in which § 2255 motions have essentially al-
cause.”                                                  lowed out-of-time appeals generally allege in-
                                                         effective assistance of counsel. See, e.g., Unit-
   Heard waited over forty days to move for              ed States v. Lankford, 196 F.3d 563, 569 (5th
an out-of-time appeal. In United States v.               Cir. 1999), cert. denied, 120 S. Ct. 1984
Awalt, 728 F.2d 704, 705 (5th Cir. 1984), we             (2000); United States v. Clark, 193 F.3d 845,
held that “[c]ourts cannot extend the time pe-           846 (5th Cir. 1999); Barrientos v. United
riod beyond the forty-day time period                    States, 668 F.2d 838, 842 (5th Cir. 1982);
prescribed by Rule 4(b).” A “late notice or              Mack, 659 F.2d at 25. There is no allegation
some other filing evidencing an intention to             of ineffective assistance.
appeal must be filed within the forty-day
period.” Id.                                                Therefore, because Heard failed to file any
                                                         motion or notice of appeal within the forty-day
                       II.                               period afforded by the extension, we find no
    We have treated the appointment of counsel           ground on which the district court properly
as the equivalent of the grant of an out-of-time         could base its motion to grant an out-of-time
appeal. See United States v. Lister, 53 F.3d             appeal. We therefore DISMISS the appeal for
66 (5th Cir. 1995); United States v. Quimby,             want of jurisdiction.
636 F.2d 86 (5th Cir. Unit A Feb. 1981). In
Quimby, this court treated the district court’s
authorization for defendant to proceed in
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 sub-
stitute appellate counsel tantamount to a find-
ing of excusable neglect. 52 F.3d at 68.
                                                            2
    Even this liberal construction, however,                    The relevant portion of the statute reads:
does not assist Heard. Both Quimby and Lis-
ter filed their notices of appeal within the                If the court finds . . . that there has been
                                                            such a denial or infringement of the
forty-day limit. Heard filed no motion within
                                                            constitutional rights of the prisoner as to
this time, and Awalt plainly indicates that some
                                                            render the judgment vulnerable to collateral
filing within the forty-day period is necessary             attack, the court shall vacate and set the
for the court even to consider extending the                judgment aside and shall discharge the
time for excusable neglect. Thus, the district              prisoner or resentence him or grant a new
court erred in granting the motion for out-of-              trial or correct the sentence as may appear
time appeal.                                                appropriate.

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