United States v. Michael McClain , 627 F. App'x 235 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6489
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL PRESTON MCCLAIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:11-cr-00477-HMH-1; 7:14-cv-02671-HMH )
Submitted: December 10, 2015 Decided: December 28, 2015
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael Preston McClain, Appellant Pro Se. Elizabeth Jean
Howard, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Preston McClain, a federal prisoner, seeks to
appeal the district court’s order granting the Government’s
motion for summary judgment and dismissing his 28 U.S.C. § 2255
(2012) motion to vacate. We granted a limited remand to the
district court for further factual development on the issue of
whether McClain noted a timely appeal. United States v.
McClain, 612 F. App’x 679 (4th Cir. 2015) (No. 15-6489).
The district court’s findings of fact are reviewed for
clear error. Fed. R. Civ. P. 52(a)(6); see Ray v. Clements, 700
F.3d 993, 1012 (7th Cir. 2012) (applying clear error review to
district court’s factual findings in prison mailbox rule
determination). A finding is “clearly erroneous” when the
reviewing court “is left with the definite and firm conviction
that a mistake has been committed.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573 (1985) (internal quotation
marks omitted). The district court concluded, based on evidence
presented by the Government and in the absence of a response by
McClain, that the notice of appeal was given to prison officials
for mailing on March 31, 2015, beyond the applicable appeal
period.
When the United States or its officer or agency is a party,
the notice of appeal must be filed no more than 60 days after
the entry of the district court’s final judgment or order, Fed.
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R. App. P. 4(a)(1)(B), unless the district court extends the
appeal period under Fed. R. App. P. 4(a)(5), or reopens the
appeal period under Fed. R. App. P. 4(a)(6). “[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 order was entered on the docket on
January 8, 2015. The court did not clearly err in finding that
the notice of appeal was filed on March 31, 2015. Thus, the
appeal was untimely. Because McClain failed to file a timely
notice of appeal or to obtain an extension or reopening of the
appeal period, we dismiss the appeal for lack of jurisdiction.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
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