United States v. Byron Mitchell , 588 F. App'x 230 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7165
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BYRON MITCHELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:11-cr-00525-PJM-1; 8:13-cv-01551-PJM)
Submitted: December 16, 2014 Decided: December 18, 2014
Before DUNCAN and DIAZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Remanded by unpublished per curiam opinion.
Byron Mitchell, Appellant Pro Se. Sujit Raman, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Byron Mitchell seeks to appeal the district court’s
orders denying relief on his 28 U.S.C. § 2255 (2012) and Fed. R.
Civ. P. 59(e) motions. Parties are accorded sixty days after
the entry of the district court’s final judgment or order to
note an appeal. Fed. R. App. P. 4(a)(1)(B). The district court
may, however, extend the time for filing a notice of appeal if a
party so moves within thirty days after expiration of the
original appeal period and demonstrates excusable neglect or
good cause for the extension. Fed. R. App. P. 4(a)(5)(A)(i)-
(ii); Washington v. Bumgarner, 882 F.2d 899, 900–01 (4th Cir.
1989). “[T]he timely filing of a notice of appeal in a civil
case is a jurisdictional requirement.” Bowles v. Russell, 551
U.S. 205, 214 (2007).
The district court’s final order dismissing Mitchell’s
Rule 59(e) motion was entered May 22, 2014. Mitchell filed his
notice of appeal, at the earliest, on July 30, 2014, nine days
after the appeal period expired. See Houston v. Lack, 487 U.S.
266, 276 (1988). Because Mitchell’s notice of appeal was filed
beyond the expiration of the appeal period but within the
thirty-day excusable neglect period and offered some excuse for
his untimeliness, we construe it as a timely request for an
extension of time accompanying Mitchell’s notice of appeal.
Accordingly, we remand this case to the district court for the
2
limited purpose of determining whether Mitchell has demonstrated
excusable neglect or good cause warranting an extension of the
appeal period. The record, as supplemented, will then be
returned to this court for further consideration.
REMANDED
3