APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 75-173)
Before Aldisert, Adams, and Higginbotham, Circuit Judges.
We are asked to review the district court's denial of a motion made under 28 U.S.C. § 2255 by appellant McKnight to vacate the sentence imposed upon his conviction for federal narcotics law violations. Because the notice of appeal was not seasonably filed in the district court, however, we must dismiss the appeal.*fn1
The appellant was charged in a March 1975 indictment with fourteen violations of federal narcotics law, 21 U.S.C. § 841. Although the case was originally listed for trial in November 1975, appellant failed to appear and was a fugitive from justice for more than a year. Following his arrest, appellant entered a plea of guilty to all fourteen counts. He was sentenced to thirty years imprisonment and a special parole term of five years. He subsequently filed a motion to set aside his guilty plea and to reconsider his sentence which was denied by the district court after appointment of counsel and a hearing on the matter.
Appellant then filed a petition*fn2 under § 2255 which gave rise to this appeal. No evidentiary hearing was held; the district court ruled that appellant's entry of a guilty plea precluded collateral review of most of his arguments and that the remaining claims were without merit. Accordingly, the district court entered an order denying appellant's motion on December 21, 1977. Because the United States was a party to the action, the time for filing an appeal ran for sixty days, or until February 21, 1978.*fn3 On March 16, 1978 a letter-notice of appeal was received in this court and forwarded to the district court which received it on March 20, 1978. The notice was received after the expiration of the sixty-day period, but within thirty days thereafter. It was thus received within the period during which the district court, upon a showing of excusable neglect, may extend the time for filing the notice of appeal.*fn4 See Fed. R. App. P. 4(a).
The time limit set forth in Rule 4(a) is both "mandatory and jurisdictional." Browder v. Director, Department of Corrections, 434 U.S. 257, 264, 98 S. Ct. 556, 54 L. Ed. 2d 521 (1978). This court, then, may rule upon the merits of this appeal if, but only if, a determination of excusable neglect has been properly entered by the district court. We must therefore consider the proper course to follow when this court's appellate jurisdiction rests upon an unresolved question of fact which may only be settled by a district court judge.
We begin our analysis with the decision of this court in Torockio v. Chamberlain Manufacturing Co., 456 F.2d 1084 (3d Cir. 1972) (in banc). In Torockio, as in the case at bar, the notice of appeal had been filed "within the time to which the district court might have granted an extension" had the appellant made a showing of excusable neglect. Id. at 1086. A motion to dismiss the appeal on grounds of untimeliness presented this court with the issue "whether at this time any power remains in the district court to approve Nunc pro tunc the filing of the notice of appeal . . .." Id. We observed that the question would require review of a prior Third Circuit decision in light of a change in the controlling appellate rules:
Commentators have suggested that Plant Economy, Inc. v. Mirror Insulation Co., 308 F.2d 275, 278 (3d Cir. 1962) prohibits such a result. The court considering a similar problem arising under Fed.R.Civ.P. 73(a) said:
"The (district) court was then (87 days after entry of judgment) without power to enter a valid order of extension."
When Fed. R. App. P. 4(a) superseded Fed.R.Civ.P. 73(a) the language of the former rule was changed. The Notes of the Advisory Committee on Appellate Rules, Fed. R. App. P. 4(a), suggests, however, and commentators have assumed that the difference in language between Fed.R.Civ.P. 73(a) and Fed. R. App. P. 4(a) was not intended to affect a change in the above quoted holding of the Plant Economy case. See, e. g., 9 J. Moore, Federal Practice Par. 204.13(2) (2d ed. 1970). If Plant ...