                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-19-2005

USA v. Naus
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3963




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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 04-3963
                                   ________________

                           UNITED STATES OF AMERICA

                                              v.

                                 ROBERT NAUS,
                                       Appellant
                      ____________________________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                            (D.C. Crim. No. 77-cr-00194-7)
                       District Judge: Honorable John P. Fullam
                    _______________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 12, 2005

          BEFORE: RENDELL, AMBRO and FUENTES, CIRCUIT JUDGES

                                (Filed: October 19, 2005)
                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       In 1977 Robert Naus was convicted of federal drug charges and sentenced to three

years’ imprisonment; we affirmed the following year. Meanwhile, Naus was convicted in

the Delaware County, Pennsylvania, Court of Common Pleas of first degree murder and

rape. In 1980 Naus filed a motion requesting credit against his federal sentence for time
served in state custody. The District Court denied the motion after oral argument and

again we affirmed. United States v. Naus, C.A. No. 80-2359 (3d Cir. June 25, 1982).

Naus subsequently escaped and remained a fugitive for seven years. After he was

returned to state custody, Naus filed a motion pursuant to 28 U.S.C. § 2255 challenging

his federal conviction. We affirmed the denial of that motion in 1994. United States v.

Naus, C.A. No. 93-1538 (3d Cir. February 3, 1994).

       Nine years later, Naus filed a motion requesting a copy of his federal sentencing

transcripts, claiming that they would prove that he is entitled to credit against his federal

sentence for time served in state custody. Naus captioned the motion with the docket

number for his federal criminal case and the motion was entered on that docket. The

District Court initially granted the motion but, on learning that the transcript was not

available (evidently the hearing was not transcribed and the stenographer’s notes were

destroyed years ago) subsequently denied it. The court noted this could not prejudice

Naus because he is bound by the District Court’s 1980 denial, affirmed by this Court, of

his petition for sentencing credit. This appeal followed. The government argues that the

appeal should be dismissed for lack of jurisdiction and, alternatively, that it is meritless.

                                               I

       The District Court’s order denying Naus’s motion was entered on September 8,

2004. If the motion is treated as a continuation of the underlying criminal case, the

appeal must be dismissed as untimely. Pursuant to Fed. R. App. P. 4(b)(1)(A), Naus’s

notice of appeal was due within ten days. However, the notice, which is dated October 5,
2004, was not filed until October 12, 2004. Even deeming the appeal filed on the day

Naus dated it, it was untimely. The record does not suggest any reasons to extend the

filing deadline, and Naus has not responded to the Government’s brief with reasons why

we should do so. Because timeliness is a mandatory jurisdictional prerequisite, we lack

jurisdiction. United States v. Robinson, 361 U.S. 220, 229-30 (1960).

       However, if Naus’s motion is construed as a separate civil action challenging the

execution of his sentence under 28 U.S.C. § 2241, the appeal would be timely because it

was filed within 60 days. Fed. R. App. P. 4(a)(1)(B). Giving Naus the benefit of the

doubt as a pro se litigant, we so construe it because although Naus does request

transcripts, the main focus of his motion – like his appellate brief – is explaining why he

believes he should receive credit against his federal sentence. Moreover, the District

Court effectively addressed this argument on the merits.

                                              II

       On appeal, Naus asserts that “it is hard to believe” that the hearing would not have

been transcribed and/or that the stenographer’s notes would have been destroyed. Be that

as it may, he provides no reasons to doubt the District Court’s finding that there is, in fact,

no transcript and nothing to transcribe. In light of that finding, we can hardly fault the

District Court for denying the motion for transcripts. Moreover, as the District Court

explained, Naus litigated the underlying substance of his motion more than 20 years ago.

Our decision in United States v. Naus, C.A. No. 80-2359 (3d Cir. June 25, 1982),

affirming the District Court’s rejection of his sentence credit argument, is now the law of
the case. Naus is essentially asking us to overrule that decision, but we cannot do so

absent such extraordinary circumstances as where the initial decision was clearly

erroneous and would work a manifest injustice. Christianson v. Colt Indus. Operating

Corp., 486 U.S. 800, 817 (1988). That is hardly the case here. Accordingly, we affirm

the judgment of the District Court.
