United States v. Darius Prayer , 705 F. App'x 195 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6385
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARIUS DEMARCO PRAYER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Raymond A. Jackson, District Judge. (2:11-cr-00058-RAJ-FBS-7;
2:16-cv-00213-RAJ)
Submitted: November 14, 2017 Decided: December 6, 2017
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Darius Demarco Prayer, Appellant Pro Se. William David Muhr, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darius Demarco Prayer seeks to appeal the district court’s order denying his 28
U.S.C. § 2255 (2012) motion and the order dismissing his motion under the All Writs
Act, 28 U.S.C. § 1651 (2012), as an unauthorized successive § 2255 motion. We dismiss
the appeal.
Beginning with the district court’s order denying Prayer’s § 2255 motion, when
the United States or its officer or agency is a party, the notice of appeal must be filed no
more than 60 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). “[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’s order denying Prayer’s § 2255 motion was entered on the
docket on October 25, 2016. The notice of appeal was filed on March 20, 2017. 1
Because Prayer failed to file a timely notice of appeal or to obtain an extension or
reopening of the appeal period, we dismiss his appeal from the district court’s order
denying his § 2255 motion. 2
1
For the purpose of this appeal, we assume that the date appearing on the notice of
appeal is the earliest date it could have been properly delivered to prison officials for
mailing to the court. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266 (1988).
2
Although Prayer timely filed a motion to alter or amend judgment, pursuant to
Fed. R. Civ. P. 59(e), and amend or make additional factual findings, pursuant to Fed. R.
Civ. P. 52(b), the district court struck that motion. By failing to challenge the district
(Continued)
2
As for the district court’s order dismissing Prayer’s § 1651 motion, that order is
not appealable unless a circuit justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1)(B) (2012); Jones v. Braxton, 392 F.3d 683, 688 (4th Cir. 2004). 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) (2012). When the district court denies
relief on procedural grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the motion states a debatable claim of the denial
of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 484 (2000). We have
independently reviewed the record and conclude that Prayer has not made the requisite
showing. See United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003) (explaining
what constitutes successive § 2255 motion). Accordingly, we deny a certificate of
appealability and dismiss Prayer’s appeal from the district court’s order dismissing
Prayer’s § 1651 motion as an unauthorized successive § 2255 motion.
We also deny Prayer’s request to place this appeal in abeyance, and we deny
Prayer’s request to file a successive § 2255 motion without prejudice to his right to refile
using the proper forms. We dispense with oral argument because the facts and legal
court’s order striking that motion, Prayer has forfeited appellate review of the issue. See
4th Cir. R. 34(b); Williams v. Giant Food Inc., 370 F.3d 423, 430 n.4 (4th Cir. 2004).
Consequently, the appeal period was not tolled by that motion, see Fed. R. App. P.
4(a)(4)(A), and none of Prayer’s later filings tolled the time for appealing the district
court’s order denying his § 2255 motion.
3
contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
DISMISSED
4