                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-31-2008

Bruce Roberts v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3562




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ALD-11                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 08-3562


                              BRUCE JAMES ROBERTS,
                                               Appellant,

                                            v.

                           UNITED STATES OF AMERICA
                        __________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                               (D.C. Civ. No. 04-cv-05045)
                     District Judge: Honorable Katharine S. Hayden

                      ____________________________________

                    Submitted for Possible Summary Action Pursuant
                       to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    October 17, 2008

             Before: SLOVITER, FUENTES and JORDAN, Circuit Judges

                            (Opinion filed: October 31, 2008)


                                        OPINION




PER CURIAM

      Appellant Bruce Roberts, a federal prisoner, was found guilty following a jury trial

in United States District Court for the District of New Jersey of conspiring to commit
bank robbery in violation of 18 U.S.C. § 371 and bank robbery in violation of 18 U.S.C. §

2113(a). On February 12, 1996, he was sentenced as a career offender to a term of

imprisonment of 210 months and fined $5,000.00. We affirmed the judgment on October

9, 1996 in United States v. Roberts, No. 96-5142, and the United States Supreme Court

thereafter denied certiorari. On February 28, 1998, Roberts filed a motion to vacate

sentence pursuant to 28 U.S.C. § 2255, which the sentencing court denied on the merits.

On March 10, 1999, we denied Roberts’ request for a certificate of appealability in United

States v. Roberts, No. 98-6388.

       On August 27, 2004, Roberts filed a motion seeking modification of his sentence

under 18 U.S.C. § 3582(c)(2) on the basis of the Supreme Court’s decision in Blakely v.

Washington, 542 U.S. 296 (2004). The District Court Clerk’s Office opened the instant

civil case, and docketed this motion as a motion to vacate sentence under 28 U.S.C. §

2255. On September 7, 2007, Roberts filed a motion pursuant to Fed. R. Crim. Pro.

52(b), in which he contended that he was indigent and “the delegation of an installment

plan to the Bureau of Prisons” to collect his fine was improper. See generally United

States v. Corley, 500 F.3d 210 (3d Cir. 2007) (restitution order which delegates to BOP

how defendant will pay improperly delegates judicial function). On December 17, 2007,

Roberts filed a supplement in which he asked for relief under Amendment 709 of the

United States Sentencing Guidelines. See U.S.S.G. § 4A1.2. He claimed that the

sentencing court improperly counted a parole violation as a prior sentence in calculating



                                             2
his criminal history score.

       On December 31, 2007, the District Court dismissed all three requests for relief for

lack of jurisdiction, reasoning that they were unauthorized second or successive section

2255 motions. The court noted further that Blakely and United States v. Booker, 543

U.S. 220 (2005), had not been made retroactive to cases on collateral review. Roberts did

not file a timely notice of appeal of this decision.

       On July 21, 2008, Roberts filed a “Motion Seeking To Have The Court Correct

This Defendant’s Filing(s) Pursuant to Rule 10(e).” Roberts asked the District Court to

construe a June 2008 motion he had filed in his criminal case, United States v. Roberts,

D.C. Crim. No. 95-cr-00225, as a motion for permission to appeal the December 31, 2007

order. In an order entered on August 11, 2008, the District Court denied permission to

appeal, reasoning that Roberts had previously been granted permission to file an appeal

out of time in his criminal case for review of the order he had specified in the June 2008

motion, and he had given no reason whatever for why he should be granted permission to

appeal the December 31, 2007 order in his civil case.

       Roberts filed a notice of appeal on August 18, 2008, seeking to appeal the District

Court’s August 11, 2008 decision. Our Clerk notified him that his appeal was subject to

summary disposition under Third Cir. LAR 27.4 and I.O.P. 10.6 and invited him to

submit argument in writing, an invitation he has declined.

       We will summarily affirm the order of the District Court denying Roberts’



                                               3
“Motion Seeking To Have The Court Correct This Defendant’s Filing(s) Pursuant to Rule

10(e),” which was in effect a request for an extension of time to appeal. Under Third

Circuit LAR 27.4 and I.O.P. 10.6, we may summarily dispose of an appeal when it clearly

appears that no substantial question is presented by the appeal. We have jurisdiction

under 28 U.S.C. § 1291. The District Court's denial of an extension of time to appeal is

reviewed for an abuse of discretion. See Ramseur v. Beyer, 921 F.2d 504, 506 (3d Cir.

1990).

         Roberts had 60 days, or until February 29, 2008, in which to file a notice of appeal

from the District Court’s December 31, 2007 order. Fed. R. App. Pro. 4(a)(1)(B). A

District Court may extend the time for appealing upon a showing of excusable neglect or

good cause, Fed. R. App. Pro. 4(a)(5)(A)(ii) (civil); Rule 4(b)(4) (criminal). Excusable

neglect is shown where the party seeking an extension demonstrates good faith and some

reasonable basis for not complying with the time limit specified in the rules. See

Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1312 (3d Cir. 1995).

         In an order entered on April 15, 2008 in his criminal case, the District Court

denied a mandamus petition Roberts had filed. On June 18, 2008 Roberts filed a motion

in his criminal case, seeking permission to appeal the April 15 order. Just as the District

Court concluded, he made no reference whatever in this motion of any intention to appeal




                                               4
the December 31, 2007 order entered in his civil case.1 He certainly could have done so

insofar as the District Court’s April 15 order specifically referenced the December 31,

2007 order disposing of his section 3582(c)(2) and Rule 52(b) motions. The District

Court thus did not abuse its discretion in denying Roberts an extension of time to appeal.

       For the foregoing reasons, we will summarily affirm the order of the District Court

denying the “Motion Seeking To Have The Court Correct This Defendant’s Filing(s)

Pursuant to Rule 10(e).”




   1
    In the motion, Roberts stated: “Now Comes, Bruce Roberts, (Defendant) On this 12th
day of June, 2008, will respectfully move before this honorable court within a timely
fashion filing this Notice of Appeal from this court’s Order dated April 15, 2008.
Defendant request that this court take judicial notice that the defendant did not receive a
copy of this Order as of this date, and just received a copy ... on June 11, 2008.” See
Motion Seeking Permission To File Notice of Appeal, United States v. Roberts, D.C.
Crim. No. 95-cr-00225-2, Docket Entry No. 8.

                                             5
