Terraine Byers v. Anthony Hathaway, III

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6181
TERRAINE SANCHEZ BYERS,
Petitioner - Appellant,
v.
ANTHONY HATHAWAY, III,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:07-cv-00290-RJC-DSC)
Submitted: July 21, 2011 Decided: July 25, 2011
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Terraine Sanchez Byers, Appellant Pro Se. Clarence Joe
DelForge, III, Assistant Attorney General, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terraine Sanchez Byers seeks to appeal the district
court’s order accepting the magistrate judge’s recommendation
and dismissing Byers’ 28 U.S.C. § 2254 (2006) petition. We
dismiss the appeal for lack of jurisdiction because the notice
of appeal was not timely filed.
Parties are accorded thirty days after the 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). “[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 was entered on the docket
on Dec. 8, 2010. The notice of appeal was filed on Jan. 12,
2011. * Because Byers failed to file a timely notice of appeal or
to obtain an extension or 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
*
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
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
3