Michael Williams v. Loretta Kelly

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6203
MICHAEL ANTWUAN WILLIAMS,
Petitioner - Appellant,
v.
LORETTA K. KELLY, Warden, Sussex I State Prison,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:10-cv-00808-JRS)
Submitted: April 24, 2014 Decided: April 29, 2014
Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael Antwuan Williams, Appellant Pro Se. Alice Theresa
Armstrong, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Antwuan Williams seeks to appeal the district
court’s order denying relief on his 28 U.S.C. § 2254 (2012)
petition. We dismiss the appeal for lack of jurisdiction
because the notice of appeal was not timely filed.
Parties are accorded thirty days after 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). “Lack of notice of
the entry does not affect the time for appeal or relieve—or
authorize the court to relieve—a party for failing to appeal
within the time allowed, except as allowed by Federal Rule of
Appellate Procedure (4)(a).” Fed. R. Civ. P. 77(d)(2).
Rule 4(a)(6) of the Federal Rules of Appellate
Procedure permits the reopening of the appeal period if a party
has not received notice of the judgment or order within
twenty-one days after entry, but the motion requesting such
relief must be filed within 180 days after entry of the judgment
or order or fourteen days after the party received notice of the
judgment or order, whichever is earlier. Fed. R. App. P.
4(a)(6). The time requirements of Rule 4(a) are mandatory and
jurisdictional. Bowles v. Russell, 551 U.S. 205, 208-14 (2007);
Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264-65 (1978).
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The district court’s order was entered on the docket
on August 30, 2011. Williams delivered a notice of appeal and
motion to reopen the appeal period to prison officials for
mailing on January 27, 2014. See Fed. R. App. P. 4(c);
Houston v. Lack, 487 U.S. 266, 276 (1988). In the notice and
motion, Williams claimed he was not “properly notified” of the
district court’s denial decision in time to file a timely notice
of appeal. However, the 180-day reopening period expired well
before Williams filed his notice of appeal and motion to reopen.
Thus, Williams is not eligible for reopening of the appeal
period. Nunley v. City of Los Angeles, 52 F.3d 792, 794-95
(9th Cir. 1995); Hensley v. Chesapeake & Ohio Ry. Co., 651 F.2d
226, 228 (4th Cir. 1981).
Accordingly, because Williams failed to file a timely
notice of appeal or to obtain an extension of the appeal period
and is not eligible for reopening of the appeal period, we deny
leave to proceed in forma pauperis and dismiss the appeal.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
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