Scottie Robinson v. Warden Lieber Correctional Institution ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7554
SCOTTIE ROBINSON,
Petitioner - Appellant,
v.
WARDEN LIEBER CORRECTIONAL INSTITUTION,
Respondent – Appellee,
and
WILLIAM BYARS, Director South Carolina Department of
Corrections,
Respondent.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Richard M. Gergel, District Judge.
(1:11-cv-01804-RMG)
Submitted: January 8, 2013 Decided: January 15, 2013
Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Scottie Robinson, Appellant Pro Se. Donald John Zelenka, Senior
Assistant Attorney General, William Edgar Salter, III, Assistant
Attorney General, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Scottie Robinson seeks to appeal the district court’s
order adopting the magistrate judge’s recommendation and
dismissing his 28 U.S.C. § 2254 (2006) motion. We dismiss his
appeal for lack of jurisdiction because the notice of appeal was
not timely filed.
In civil cases like Robinson’s, parties are accorded
thirty days after “entry” of the district court’s final judgment
or order to note an appeal. Fed. R. App. P. 4(a)(1)(A). The
order that Robinson seeks to appeal was entered on August 3,
2012. Robinson thus had until Tuesday, September 4, 2012, in
which to note an appeal. See Fed. R. App. P. 4(a)(1)(A) &
26(a)(1)(C). 1 Nevertheless, Robinson filed his notice of appeal,
at earliest, on September 6, 2012 — two days too late. 2
Although Robinson’s notice of appeal appears to
reflect his assumption that the pertinent thirty-day period
began to run from the moment he received notice of the order’s
entry, he is mistaken. As is plain from the language of Rule 4,
1
The thirtieth day after entry of judgment was a Sunday and
the thirty-first day a legal holiday, Labor Day.
2
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. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266(1988).
3
the thirty-day appeal period runs from the date of the “entry”
of the district court’s judgment, not from the date on which a
party receives notice of the entry. See Fed. R. App. P.
4(a)(1)(A); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d
683, 688 (4th Cir. 1978). “Entry of judgment consists of two
steps: creation of a document setting out the judgment and a
notation of the document on the docket sheet.” Wilson v.
Murray, 806 F.2d 1232, 1234 (4th Cir. 1986); see also Fed. R.
App. P. 4(a)(7)(A). Because the order that Robinson seeks to
appeal was unquestionably entered on the district court’s docket
more than thirty days prior to the date he placed his notice of
appeal in the prison mailing system, his notice of appeal was
not filed within the thirty-day period established by Rule
4(a)(1)(A). See Baker v. United States, 670 F.3d 448, 457-60
(3d Cir. 2012) (explaining that the language of Rule 4(a) and
the statute upon which it is based — 28 U.S.C.A. § 2107 (West
2006 & Supp. 2012) — do not permit the courts to construct in
this context a rule that operates analogously to the Houston v.
Lack rule).
Although the appeal period may be extended under Fed.
R. App. P. 4(a)(5) or reopened under Fed. R. App. P. 4(a)(6),
Robinson has failed to file any motion seeking to alter the
applicable time period under these provisions.
4
Because “the timely filing of a notice of appeal in a
civil case is a jurisdictional requirement,” we lack
jurisdiction to consider Robinson’s claims. Bowles v. Russell,
551 U.S. 205, 214 (2007). Accordingly, we deny Robinson’s
application to proceed in forma pauperis and dismiss his 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
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