              Case: 19-13580    Date Filed: 08/21/2020    Page: 1 of 5



                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-13580
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:09-cr-20210-JAL-1


UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                             versus

SIRTAJ (TOSH) MATHAUDA,
a.k.a. Mark Bolan,

                                                             Defendant-Appellant.
                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                (August 21, 2020)

Before WILSON, JORDAN and NEWSOM, Circuit Judges.

PER CURIAM:

      Sirtaj Mathauda, proceeding pro se, appeals the district court’s orders

denying his motion for judgment of acquittal based on actual innocence claims and
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to produce evidence. The government has filed a motion to dismiss the appeal as

untimely.

      In evaluating our appellate jurisdiction, we will consider the substance of the

order on appeal and its practical effect, rather than any labels applied by the district

court. Young v. Prudential Ins. Co. of America, 671 F.3d 1213, 1215 (11th Cir.

2012).

      In a criminal case, a defendant’s notice of appeal must be filed in the district

court within 14 days after entry of the judgment or order being appealed. Fed. R.

App. P. 4(b)(1)(A)(i). A pro se prisoner’s notice of appeal is deemed filed on the

date that he delivers it to prison authorities for mailing. Fed. R. App. P. 4(c)(1); see

Daniels v. United States, 809 F.3d 588, 589 (11th Cir. 2015). Absent evidence to

the contrary, we will assume that a prisoner delivered a filing to prison authorities

on the day the prisoner signed it. Daniels, 809 F.3d at 589. If a deadline falls on a

Saturday, Sunday, or legal holiday, the time to file continues to run until the next

day that is not a Saturday, Sunday, or legal holiday. Fed. R. App. P. 26(a)(1)(C).

      Rule 4(b)(4) authorizes the district court to grant a 30-day extension of the 14-

day deadline in a criminal case based on a finding of good cause or excusable

neglect. Fed. R. App. P. 4(b)(4). In criminal cases, we have customarily treated a

late notice of appeal, filed within the 30 days during which an extension is

permissible, as a motion for extension of time and remanded to the district court for


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a finding of excusable neglect. United States v. Ward, 696 F.2d 1315, 1317-18 (11th

Cir. 1983). However, if a criminal defendant’s notice of appeal is filed more than

30 days after the expiration of the initial 14-day appeal period, then the defendant is

not eligible for relief under Rule 4(b)(4). See United States v. Lopez, 562 F.3d 1309,

1314 (11th Cir. 2009) (noting that Rule 4(b)(4) allowed the district court to extend

the time for filing a notice of appeal by no more than 30 days after the initial

deadline).

      Unlike in a civil case, the deadline in Rule 4(b) for a defendant to file a notice

of appeal in a criminal case is not jurisdictional. Id. at 1312-13. Instead, the filing

deadline is considered a claims processing rule, and the government can waive an

objection to an untimely notice of appeal in a criminal case. Id. at 1312-13.

Nevertheless, if the government raises the issue of timeliness, then we “must apply

the time limits of Rule 4(b).” Id. at 1313-14.

      A notice of appeal in a civil case must be filed within 60 days after the

judgment or order appealed from is entered if one of the parities to an action is the

United States, a federal agency, or a federal official or employee acting in her official

capacity or sued individually for actions taken in connection with her duties as a

United States employee. 28 U.S.C. § 2107(b); Fed. R. App. P. 4(a)(1)(B). In both

civil and criminal cases, a timely motion for reconsideration can toll the time to

appeal. See Fed. R. App. P. 4(a)(4)(A); United States v. Vicaria, 963 F.2d 1412,


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1414 (11th Cir. 1992) (noting that a motion for reconsideration in a criminal case

must be filed within the period of time allotted for filing a notice of appeal in order

to extend the time for filing the notice of appeal).

      Here, the record suggests that Mathauda knew, or should have known, that the

criminal appeal rules applied because (1) the district court stated that it construed his

2014 motion as a Rule 29 motion; (2) in moving for reconsideration, Mathauda never

argued his 2014 motion should have been construed as a § 2255 motion; (3) in the

order on the motion for reconsideration, the district court found that it did not err in

construing the motion as a Rule 29 motion and not a § 2255 motion; and (4)

Mathauda acknowledged that the 14-day time limit applied in his amended notice of

appeal. Moreover, the record demonstrates that Mathauda knew how to file a § 2255

motion because he currently has one pending, and he requested that his current

§ 2255 motion be stayed pending resolution of the motions at issue in this case.

      Because the criminal appeal rules applied, Mathauda needed to appeal the

denial of that motion, and subsequent denial of his reconsideration motion, on or

before Wednesday, July 24, 2019. See Fed. R. App. P. 4(b)(1)(A)(i). Thus,

Mathauda’s notice of appeal, deemed filed on September 6, 2019, would be untimely

to appeal from those orders. See Fed. R. App. P. 4(b)(1)(A)(i), (c)(1); Daniels, 809

F.3d at 589. Additionally, Mathauda’s notice of appeal was filed outside the

additional 30-day period for an extension under Rule 4(b)(4), which expired on


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Friday, August 23, 2019, so there is no reason to remand the case to determine if

Mathauda is eligible for relief under the rule. See Fed. R. App. P. 4(b)(4); Lopez,

562 F.3d at 1314. Accordingly, we GRANT the government’s motion to dismiss the

appeal as untimely.




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