Crowe v. Director, Dept of Corrections , 260 F. App'x 556 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7236
LEON HERBERT CROWE, II,
Petitioner - Appellant,
versus
DIRECTOR, DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:06-cv-00568-MHL)
Submitted: December 20, 2007 Decided: December 27, 2007
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Leon Herbert Crowe, II, Appellant Pro Se. Richard Carson Vorhis,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leon Herbert Crowe, II, seeks to appeal the magistrate judge’s
orders1 denying relief on his 28 U.S.C. § 2254 (2000) petition and
his subsequent Fed. R. Civ. P. 60(b) motion. To the extent Crowe
seeks to appeal the magistrate judge’s order denying relief on his
§ 2254 petition, we dismiss the appeal for lack of jurisdiction
because the notice of appeal was not timely filed.
Parties are accorded thirty days after the entry of the
district court’s final judgment or order to note an appeal, Fed. R.
App. P. 4(a)(1)(A), 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). This appeal period is “mandatory
and jurisdictional.” Browder v. Dir., Dep’t of Corr., 434 U.S.
257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220,
229 (1960)).
The magistrate judge’s order denying § 2254 relief was entered
on the docket on June 27, 2007. The notice of appeal was filed, at
the earliest, on August 13, 2007.2 Because Crowe failed to file a
timely notice of appeal or to obtain an extension or reopening of
1
The parties consented to the magistrate judge’s jurisdiction
pursuant to 28 U.S.C. § 636(c) (2000).
2
Because Crowe is a prisoner and filed his notice of appeal
pro se, it is deemed filed on the date he gave it to prison
officials for mailing. See Fed. R. App. P. 4(c)(1); Houston v.
Lack, 487 U.S. 266, 276 (1988). Crowe’s notice of appeal was
filed, at the earliest, on August 13, 2007, the date he provided on
his certificate of service.
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the appeal period, we dismiss the appeal from the order denying
§ 2254 relief.
Turning to the appeal of the order denying Crowe’s Rule 60(b)
motion, this order is not appealable unless a circuit justice or
judge issues a certificate of appealability. See 28 U.S.C.
§ 2253(c)(1) (2000). A certificate of appealability will not issue
absent “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find that
any assessment of the constitutional claims by the district court
is debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. See Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S.
473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001).
We have independently reviewed the record and conclude that Crowe
has not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal from the order
denying Crowe’s Rule 60(b) motion.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
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