US v. Madrid, 2011 WL 455766, No. 09-2262 (NM), 2-10-11 - The issue was how the government can challenge the district court's extension of time in which to file a notice of appeal. Defendant counsel filed motion to extend time to file notice of appeal after time had already run. The motion alleged only that counsel had not done a federal criminal appeal in a long time and thought he had thirty days, and stated the government opposed it. The district court granted the motion before the government's time to file a response had expired. The government did not move in the district court to reconsider, but rather field a motion to dismiss in the 10th.

The motion was granted. 1) counsel's mistake as to time limit was not excusable neglect warranting granting an extension of time; 2) once the district court granted the extension, it no longer had jurisdiction, so even if the government had moved to reconsider, the court was powerless to do so; and 3) government was not required to file a cross appeal to raise the issue, since it was not asking for additional relief beyond what it had already received (defendant's conviction and sentence).

It should also be noted that the government will still have to deal with the merits at some point, because counsel's failure to timely file an appeal pursuant to his client's wishes is an automatic slam-dunk 2255, and the remedy is -- the notice of appeal gets filed. So, what an utter waste of judicial resources.