King v. Shearin , 386 F. App'x 444 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6178
BENNY DERRELL KING,
Petitioner – Appellant,
v.
BOBBY P. SHEARIN, N.B.C.I. Warden; DOUGLAS F. GANSLER, The
Attorney General of the State of Maryland; ATTORNEY GENERAL
OF MARYLAND,
Respondents – Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:09-cv-02014-AW)
Submitted: June 24, 2010 Decided: June 30, 2010
Before DUNCAN, AGEE, and DAVIS, Circuit Judges.
Remanded by unpublished per curiam opinion.
Benny Derrell King, Appellant Pro Se. Edward John Kelley,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Benny Derrell King seeks to appeal the district
court’s order dismissing his 28 U.S.C. § 2254 (2006) petition as
time-barred.
Pursuant to Federal Rule of Appellate Procedure
4(a)(1)(A), a notice of appeal in a civil case must be filed
with the district court within thirty days of entry of judgment.
“[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). Therefore, the appeal must be dismissed if the
notice of appeal is untimely. Washington v. Bumgarner, 882 F.2d
899, 900 (4th Cir. 1989). The district court may extend the
filing time if “a party so moves no later than 30 days after the
time prescribed by . . . Rule 4(a) expires” and the party shows
excusable neglect or good cause. Fed. R. App. P. 4(a)(5)(A)(i)-
(ii).
The district court’s order dismissing King’s § 2254
petition was entered on December 23, 2009. King had thirty
days, or until January 22, 2010, to file a notice of appeal.
King filed his notice of appeal, at the earliest, on January 25,
2010, thirty-three days after judgment was entered. *
*
For purposes of this appeal, we assume the date appearing
on the notice of appeal is the earliest date it could have been
(Continued)
2
King’s notice of appeal was filed within the thirty-
day excusable neglect period provided by Fed. R. App. P.
4(a)(5)(A)(i). Further, the notice of appeal arguably reflects
a request for an extension of the thirty-day appeal period.
Accordingly, we remand this case to the district court for the
limited purpose of enabling the court to determine whether King
adequately requested such an extension and whether he has shown
excusable neglect or good cause warranting an extension of the
appeal period. The record, as supplemented, will then be
returned to this court for further consideration.
REMANDED
delivered to prison officials for mailing. See Houston v. Lack,
487 U.S. 266, 276 (1988).
3