United States v. Kevin Slade , 675 F. App'x 360 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7370
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN MYELL SLADE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:08-cr-00003-FL-1; 4:13-cv-00132-FL)
Submitted: January 31, 2017 Decided: February 3, 2017
Before WILKINSON, KEENAN, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kevin Myell Slade, Appellant Pro Se. Shailika S. Kotiya, Joshua
Bryan Royster, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Myell Slade seeks to appeal the district court’s
order adopting the recommendation of the magistrate judge and
denying relief on his 28 U.S.C. § 2255 (2012) 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 60 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). “Lack of notice of
the entry does not affect the time for appeal or relieve-or
authorize the court to relieve-a party for failing to appeal
within the time allowed, except as allowed by Federal Rule of
Appellate Procedure (4)(a).” Fed. R. Civ. P. 77(d)(2).
Rule 4(a)(6) of the Federal Rules of Appellate Procedure
permits the reopening of the appeal period if a party has not
received notice of the judgment or order within 21 days after
entry, but the motion requesting such relief must be filed
within 180 days after entry of the judgment or 14 days after the
party received notice of the judgment or order, whichever is
earlier. Fed. R. App. P. 4(a)(6). The time requirements of
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Rule 4(a) are mandatory and jurisdictional. Bowles v. Russell,
551 U.S. 205, 208–14 (2007).
The district court’s order was entered on the docket on
July 15, 2016. Slade’s notice of appeal was filed on October 5,
2016. * In the notice of appeal, Slade claims that he received
the district court’s order on September 9, 2016. The 14-day
period under Rule 4(a)(6), however, expired before Slade filed
his notice of appeal. Thus, Slade is not eligible for reopening
of the appeal period. See Nunley v. City of Los Angeles,
52 F.3d 792, 794–95 (9th Cir. 1995); Hensley v. Chesapeake &
Ohio Ry. Co., 651 F.2d 226, 228 (4th Cir. 1981).
Accordingly, because Slade failed to file a timely notice
of appeal or to obtain an extension of the appeal period and is
not eligible for reopening of the appeal period, we dismiss the
appeal. 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
*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); Houston v. Lack, 487 U.S.
266, 276 (1988).
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