United States v. Ford

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8041
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LEMONZE E. FORD,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:03-cr-01094-HFF-14; 7:06-cv-02148-HFF)
Submitted: September 11, 2009 Decided: October 9, 2009
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Lemonze E. Ford, Appellant Pro Se. Elizabeth Jean Howard,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lemonze E. Ford seeks to appeal the district court’s
order denying his 28 U.S.C.A. § 2255 (West Supp. 2009) motion.
We dismiss the appeal for lack of jurisdiction because the
notice of appeal was not timely filed.
In a civil case, when the United States or its officer
or agency is a party, 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). The requirement of a timely notice of appeal is
mandatory and jurisdictional. See Bowles v. Russell, 551 U.S.
205, 214 (2007); United States v. Urutyan, 564 F.3d 679, 685
(4th Cir. 2009) (discussing Bowles and the appeal periods under
Fed. R. App. P. 4(a)).
The district court’s order was filed and entered on
its docket on July 10, 2008. The district court received Ford’s
undated notice of appeal on September 22, 2008, after the
expiration of the sixty-day appeal period, but within the
excusable neglect period. Because Ford moved for an extension
of time pursuant to Rule 4(a)(5), we remanded this case to the
district court to determine whether Ford could demonstrate
excusable neglect or good cause warranting an extension of the
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appeal period. On remand, the district court found that Ford
had not established excusable neglect or good cause. We have
reviewed the record and conclude that the district court did not
abuse its discretion in making this determination.
Because the district court declined to extend the
appeal period based on excusable neglect or good cause, we
dismiss the appeal for lack of jurisdiction. 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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