United States v. McFadden , 403 F. App'x 794 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7246
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DWAYNE MCFADDEN,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:04-cr-00564-TLW-1; 4:07-cv-70091-TLW)
Submitted: November 18, 2010 Decided: December 2, 2010
Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Dwayne McFadden, Appellant Pro Se. Rose Mary Sheppard Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwayne McFadden seeks to appeal the district court’s
order denying his 28 U.S.C.A. § 2255 (West Supp. 2010) motion.
We dismiss the appeal for lack of jurisdiction because the
notice of appeal was not timely filed.
When the United States or its officer or agency is a
party, the notice of appeal must be filed no more than sixty
days after the entry of the district court’s final judgment or
order, Fed. 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 October 20, 2009. The notice of appeal was filed on August
11, 2010. * Because McFadden failed to file a timely notice of
appeal or to obtain an extension or reopening of the appeal
period, we dismiss the appeal. We dispense with oral argument
because the facts and legal contentions are adequately presented
*
For the purpose of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could
have been properly delivered to prison officials for mailing to
the court. See Fed. R. App. P. 4(c)(1); Houston v. Lack, 487
U.S. 266, 276 (1988).
2
in the materials before the court and argument would not aid the
decisional process.
DISMISSED
3