United States v. Myers , 274 F. App'x 240 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-6569
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLINTON DESHANNON MYERS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (7:05-cr-00096-jct)
Submitted: February 21, 2008 Decided: April 17, 2008
Before MICHAEL and KING, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Clinton Deshannon Myers, Appellant Pro Se. Ronald Andrew Bassford,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clinton Deshannon Myers seeks to appeal the district
court’s order denying his motions to reopen the time to file a
notice of appeal from his criminal judgment and for production of
transcripts. We remanded the case to the district court for the
limited purpose of determining whether Myers had shown excusable
neglect or good cause to warrant an extension of time to file a
notice of appeal. Despite an order from the district court
directing Myers to submit an affidavit explaining the reason he
failed to file a notice of appeal within ten days of the motion he
sought to appeal, Myers filed no explanation. The court found that
he failed to demonstrate excusable neglect or good cause. See
United States v. Myers, No. 7:05-cr-00096-jct (W.D. Va. Mar. 9,
2007). We therefore dismiss the appeal as untimely.
In criminal cases, the defendant must file the notice of
appeal within ten days after the entry of judgment. Fed. R. App.
P. 4(b)(1)(A). With or without a motion, upon a showing of
excusable neglect or good cause, the district court may grant an
extension of up to thirty days to file a notice of appeal. Fed. R.
App. P. 4(b)(4); United States v. Reyes, 759 F.2d 351, 353 (4th
Cir. 1985).
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The district court entered judgment on March 9, 2007.
The notice of appeal was filed on April 11, 2007.* Because Myers
failed to file a timely notice of appeal or to obtain an extension
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 the court and argument would not
aid the decisional process.
DISMISSED
*
Myers did not date his notice of appeal, but it was
postmarked April 11, 2007. For purposes of this appeal, we assume
that the postmark date 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).
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