# United States v. Jose v. Reyes

> Court of Appeals for the Fourth Circuit · April 10, 1985 · 759 F.2d 351

URL: https://www.frixlaw.com/law-library/cases/9473334

## Case

- **Full name:** UNITED STATES of America, Appellee, v. Jose v. REYES, Appellant
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** April 10, 1985
- **Citations:** 759 F.2d 351; 1985 U.S. App. LEXIS 30357
- **Precedential status:** Published
- **Opinion:** Concurrence by Murnaghan
- **Judges:** Hall, Murnaghan
- **Cited by:** 375 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9473334

## How later opinions describe it (automated extraction)

- holding that a mailing delay constituted excusable neglect

## Opinion text

MURNAGHAN, Circuit Judge,
concurring.
Agreeing with the conclusion reached by Judge Hall and with much of what he has written, nevertheless I write specially to concur because I regard the decision in Shah v. Hutto, 722 F.2d 1167 (4th Cir.1983) (en banc), cert. denied, — U.S.-, 104 S.Ct. 2354 , 80 L.Ed.2d 827 (1984) an unfortunate example of a nod by Homer. While I am certainly bound by it unless or until modified or overruled, I see a potentially harmful effect of dragging Shah v. Hutto which was governed by F.R.App.P. 4(a) concerning civil cases into resolution of a criminal controversy controlled by the significantly different F.R.App.P. 4(b).
Accordingly, I disassociate myself from the language in the majority opinion beginning “In Shah v. Hutto, ...” appearing on page 353. Instead of that language, I, for purposes of my concurrence, substitute the following:
“The language quoted from Rule 4(b) is substantially different from the wording of Rule 4(a), which governs appeals in civil cases. Reyes contends that excusable neglect inescapably applies to explain and justify the two day delay occasioned by failure of the post office to effect, in three days time, prompt delivery to the district court from a mail drop in the very building containing the dis-
*355 trict court to whom the notice of appeal was addressed.
No motion was required by Rule 4(b), so Reyes was entitled to resolution of the question of whether there was excusable neglect. An affirmative holding would establish that the appeal was timely filed.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9473334. Public record. Not legal advice.