United States v. Shirley Lewis

954 F.2d 720 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Shirley LEWIS, Defendant-Appellant. No. 91-5532. United States Court of Appeals, Fourth Circuit. Submitted Feb. 3, 1992. Decided Feb. 11, 1992. Appeal from the United States District Court for the Middle District of North Carolina, at Winston-Salem. Norwood Carlton Tilley, Jr., District Judge. (CR-89-280-WS). Lisa S. Costner, Greeson, Grace & Gatto, P.A., Winston-Salem, N.C., David F. Tamer, Winston-Salem, N.C., for appellant. Robert H. Edmunds, Jr., United States Attorney, Paul A. Weinman, Assistant United States Attorney, Greensboro, N.C., for appellee. M.D.N.C. DISMISSED. Before WIDENER, HAMILTON and LUTTIG, Circuit Judges. OPINION PER CURIAM: — 1 — Shirley Lewis seeks to appeal the judgment of the district court imposed following her plea of guilty to an indictment charging her with violation of 21 U.S.C. §§ 841(a)(1) and 846 (1988). We dismiss the appeal. — 2 — A notice of appeal in a criminal action must be filed within ten days of the judgment. Fed.R.App.P. 4(b). Upon a showing of excusable neglect this time may be extended for an additional thirty days. Id. The time limits in Rule 4(b) are jurisdictional. United States v. Miles, 510 F.2d 1362 (4th Cir.1975). Lewis's notice of appeal was filed more than seventy-five days after judgment was entered in her case. We therefore lack jurisdiction to consider her appeal.* — 3 — Pursuant to the plan adopted by the Fourth Circuit Judicial Council in implementation of the Criminal Justice Act of 1964 (18 U.S.C. § 3006A (1988)), this Court requires that counsel inform her client, in writing, of her right to petition the Supreme Court for further review. If requested by her client to do so, counsel should prepare a timely petition for a writ of certiorari. Accordingly, we deny counsel's motion for leave to withdraw. — 4 — We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. — 5 — DISMISSED. Footnotes [-s] * Lewis filed with this Court a "Motion to Waive Ten Day Period for Filing Notice of Appeal." This motion is denied. See Fed.R.App.P. 26(b). To the extent this motion alleges that the delay in filing was due to advice from counsel, it seeks relief which must be pursued in the first instance in the district court in a proceeding pursuant to 28 U.S.C. § 2255 (1988). Our dismissal is without prejudice to the pursuit of such relief