Elmer Gerard Pratt v. D.J. McCarthy Superintendent

ORDER DENYING PETITION FOR REHEARING

We deny the petition for rehearing. We conclude that our decision does not conflict with United States v. Houser, 804 F.2d 565 (9th Cir.1986). In both Pratt and Houser , a convicted prisoner attempting to pursue an appeal of an adverse district court decision was told by his attorney that the attorney would file the notice of appeal; the attorney then failed to do so. Pratt holds that this does not constitute excusable neglect for purposes of Fed.R.App.P. 4(a), which applies to civil appeals. Houser held that it did for purposes of Fed.R.App.P. 4(b), which applies to criminal appeals, because the prisoner did everything he could under the circumstances to perfect his appeal during the time allowed. The full meaning of this statement has yet to be decided. The opinion cited as authority United States v. Avendano-Camacho, which stated at the same time that “this exception has been narrowly construed, and attorney neglect has not been seen as providing a basis for relief.” 786 F.2d 1392, 1394 (9th Cir.1986).

We need not, however, solve that problem in this petition. Houser deals with criminal appeals and Pratt with civil appeals. Rules 4(a) and…