Jowarski Nedd v. Harold Clarke ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-6795
JOWARSKI RUSSELL NEDD,
Petitioner - Appellant,
v.
HAROLD W. CLARKE, Director, Virginia Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., District Judge. (3:16-cv-00948-JAG-RCY)
Submitted: October 29, 2018 Decided: November 13, 2018
Before KING, FLOYD, and HARRIS, Circuit Judges.
Remanded by unpublished per curiam opinion.
Jowarski Russell Nedd, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jowarski Russell Nedd seeks to appeal the district court’s order dismissing as
untimely his 28 U.S.C. § 2254 (2012) petition. The district court’s order was entered on
the docket on May 25, 2017. The notice of appeal was filed on June 22, 2018. * Parties
are accorded 30 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).
“[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).
Nedd’s notice of appeal was not filed within 30 days after the district court’s entry
of judgment. However, Nedd sent the district court a letter dated August 14, 2017,
stating that he had not received a response about his case and requesting an updated
status of the case. We construe this letter as a motion to reopen the appeal period. See
Fed. R. App. P. 4(a)(6). We remand the case for the limited purpose of allowing the
district court to determine when Nedd received notice of the district court’s entry of its
final order and whether he is entitled to a reopening of the appeal period pursuant to Rule
4(a)(6). The record, as supplemented, will then be returned to this court for further
proceedings.
REMANDED
*
For the purpose of this appeal, we assume that the date appearing on the notice of
appeal is the earliest date that it could have been delivered to prison officials for mailing
to the court. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266 (1988).
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