JAMES v. U.S.,
459 U.S. 1044 (1982)

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U.S. Supreme Court

JAMES v. U.S. , 459 U.S. 1044 (1982)

459 U.S. 1044

Raymond Edward JAMES
No. 81-6665

Supreme Court of the United States

November 29, 1982

On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

The petition for a writ of certiorari is denied.

Opinion of Justice BRENNAN, with whom Justice BLACKMUN joins, respecting the denial of the petition for writ of certiorari.

Opinions supporting denial of petitions for certiorari are understandably seldom filed, but this in my view is one of the

Page 459 U.S. 1044 , 1045

rare cases where the filing of such an opinion is justified. Cf. Estate of Wilson v. Aiken Industries, Inc., 439 U.S. 877d 191 (1978) (BLACKMUN, J., concurring in denial of writ of certiorari); Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912 (1950) (Frankfurter, J., opinion respecting denial of writ of certiorari).

Petitioner, after conviction on federal criminal charges, filed a timely motion for reduction of sentence under Fed.R.Crim.P. 35. The motion was denied on July 7, 1981. For some reason, however, notice of the denial from the Clerk of the District Court was not received by either petitioner or the United States Attorney. Petitioner-who was incarcerated the entire time-first learned of it by happenstance in September 1981. He promptly requested leave from the District Court to appeal out of time, and that Court, after due investigation of the circumstances, granted his request.

The government explicitly refused to contest the propriety of the appeal before the Court of Appeals for the Ninth Circuit. Nevertheless, the Court of Appeals sua sponte dismissed the appeal, holding that district courts may not grant leave to appeal after the maximum extension period has passed. See Fed.R.App.P. 4(b). The court implied that the rigidity of Rule 4(b) could not be set aside even though this petitioner was ignorant, through no fault of his own, of the denial of his Rule 35 motion throughout the period of an allowable extension. Cf. Fed.R.Crim.P. 49(c).1 Petitioner sought certiorari here, and the Solicitor General informed us that he "do[es] not oppose vacation of the judgment of dismissal and remand to the [C]ourt of [A]ppeals." Memorandum for the United States 1. [459 U.S. 1044 , 1046]

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