Kendrelle Brown v. Robert Tanner, Warden , 578 F. App'x 349 ( 2014 )

Case: 13-30943 Document: 00512732524 Page: 1 Date Filed: 08/13/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-30943 August 13, 2014
Summary Calendar
Lyle W. Cayce
Clerk
KENDRELLE BROWN,
Petitioner-Appellant
v.
ROBERT C. TANNER, CCE, Warden,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:12-CV-1411
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Kendrelle Brown, Louisiana prisoner # 526042, appeals the district
court’s dismissal of his 28 U.S.C. § 2254 petition, challenging his convictions
and sentences for simple battery and armed robbery. The district court
granted Brown a certificate of appealability.
The timing of Brown’s notice of appeal (NOA) raises a threshold
jurisdictional question that we address sua sponte. See Hernandez v. Thaler,
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-30943 Document: 00512732524 Page: 2 Date Filed: 08/13/2014
No. 13-30943
630 F.3d 420, 424 & n. 11 (5th Cir. 2011). A habeas proceeding is a civil action,
so the “timely filing of a notice of appeal is a jurisdictional prerequisite.” Id.
at 424. Brown had 30 days from the entry of the judgment on July 1, 2013, to
file his NOA, see FED. R. APP. P. 4(a)(1)(A), so the NOA was due July 31, 2013,
see FED. R. APP. P. 26(a)(1)(A), (B).
Brown did not file an NOA within the 30-day period. Instead, on
September 3, 2013, he filed an NOA and a motion for an extension of time to
file his NOA, claiming good cause under Rule 4(a)(5)(A) of the Federal Rules of
Appellate Procedure. The problem for Brown, however, is that a Rule 4(a)(5)
motion based on good cause or excusable neglect must be filed within 30 days
of the expiration of the time to file an NOA. FED. R. APP. P. 4(a)(5)(A)(i).
Because the period for filing an NOA expired on July 31, the motion for
extension was due August 30. See FED. R. APP. P. 26(a)(1). The September 3
motion was therefore untimely. See, e.g., In re MDL 262, 799 F.2d 1076, 1078-
79 (5th Cir.1986) (holding that compliance with Rule 4(a)(5) is essential to
appellate jurisdiction).
Because Brown failed to file a timely NOA, we do not have jurisdiction.
See Hernandez, 630 F.3d at 424 & n. 11; In re MDL 262, 799 F.2d at 1078-79.
The appeal, accordingly, is DISMISSED for want of appellate jurisdiction.
2