United States v. Braddy ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7795
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS MONIQUE BRADDY, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
District Judge. (4:07-cr-00048-RBS-TEM-1; 4:08-cv-00131-RBS)
Submitted: March 16, 2010 Decided: March 29, 2010
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Thomas Monique Braddy, Jr., Appellant Pro Se. Howard Jacob
Zlotnick, Assistant United States Attorney, Newport News,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Monique Braddy, Jr., seeks to appeal the
district court’s orders dismissing his 28 U.S.C.A. § 2255 (West
Supp. 2009) motion as untimely and denying his subsequent Fed.
R. Civ. P. 60(b) motion for reconsideration. We dismiss the
appeal for lack of jurisdiction because the notice of appeal was
not timely filed.
When the United States or its officer or agency is a
party to a civil case, the notice of appeal must be filed no
more than sixty days after the entry of the district court’s
final judgment or order, Fed. R. App. P. 4(a)(1)(B), 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). A judgment or order is entered under Rule 4(a) when it
is either set forth in a separate document, as required by Fed.
R. Civ. P. 58(a), and entered on the district court’s docket, or
150 days have passed from the entry of the judgment or order.
Fed. R. App. P. 4(a)(7) (defining entry in civil cases). “[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).
The district court entered its order dismissing the
§ 2255 motion on February 20, 2009. However, because the court
did not prepare and enter its judgment on a separate document,
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the entry of judgment, for purposes of filing a notice of
appeal, is deemed to have occurred 150 days thereafter, or on
July 20, 2009. See Fed. R. Civ. P. 58(c)(2); Fed. R. App. P.
4(a)(7)(A)(ii). Thus, Braddy had sixty days thereafter, or
until September 18, 2009, to note a timely appeal. See Fed. R.
App. P. 26(a) (explaining computation of time periods). His
notice of appeal, signed on September 21, 2009, was therefore
untimely. Braddy has not offered any explanation for this
untimeliness, and he did not obtain an extension or reopening of
the appeal period. Therefore, we conclude that the notice of
appeal is untimely as to the order dismissing Braddy’s § 2255
motion.
Additionally, the notice of appeal is untimely as to
the order denying Braddy’s Rule 60(b) motion for
reconsideration. The district court entered its order denying
the Rule 60(b) motion on April 6, 2009. Because there is not a
separate document requirement for judgments disposing of Rule 60
motions, see Fed. R. Civ. P. 58(a)(5), the judgment is final
upon entry on the civil docket. See Fed. R. App. P.
4(a)(7)(A)(i). Thus, Braddy had until June 5, 2009, to note a
timely appeal. See Fed. R. App. P. 26(a). His notice of
appeal, signed on September 21, 2009, was therefore untimely.
Braddy has not offered any explanation for this untimeliness,
and he did not obtain an extension or reopening of the appeal
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period. Therefore, we conclude that the notice of appeal is
untimely as to the order denying Braddy’s Rule 60(b) motion.
Accordingly, 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
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