United States v. Gray

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7914
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES GRAY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Charles H. Haden II,
District Judge. (CR-00-186; CA-02-1355)
Submitted: May 12, 2004 Decided: May 21, 2004
Before WIDENER, WILLIAMS, and KING, Circuit Judges.
Remanded by unpublished per curiam opinion.
James Gray, Appellant Pro Se. Michael Lee Keller, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
PER CURIAM:
James Gray seeks to appeal the district court’s order
adopting a magistrate judge’s recommendation to deny relief on his
motion filed under 28 U.S.C. § 2255 (2000), an order denying his
motion for certificate of appealability, and a subsequent order
denying his motion for reconsideration. In civil actions in which
the United States or an officer or agency thereof is a party, all
parties are accorded sixty days after the entry of the district
court’s final judgment or order to note an appeal, see 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). These time periods are “mandatory and
jurisdictional.” Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264
(1978) (quoting United States v. Robinson, 361 U.S. 220, 229
(1960)).
The district court’s order denying Gray’s § 2255 motion
was entered on the docket on August 21, 2003. The notice of appeal,
postmarked November 26, 2003, was received by the district court on
December 1, 2003.1 In his notice of appeal, Gray stated that he did
1
For the purpose of this appeal, we assume the date appearing
on the envelope containing the notice of appeal is the earliest date
it could have been properly delivered to prison officials for
mailing to the court. See Fed. R. App. P. 4(c); Houston v. Lack,
487 U.S. 266 (1988). Under the certificate of service, the only
date reference is “Done this day of November 2003.” To benefit
from the mailbox rule, the prisoner must comport with the
requirements of Fed. R. App. P. 4(c)(1) and 28 U.S.C. § 1746 (2000).
Gray does not attest to a date in the certificate of service by a
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not receive timely notice of the court’s order denying habeas
relief. We construe Gray’s statement as a motion to reopen the time
to note an appeal under Fed. R. App. P. 4(a)(6).2 See United
States v. Feuver, 236 F.3d 725, 729 & n.7 (D.C. Cir. 2001). Rule
4(a)(6) permits a district court to reopen the appeal period if (a)
the motion is filed within 180 days after the judgment or order is
entered or within 7 days after the moving party receives notice of
the entry, whichever is earlier; (b) the court finds that the moving
party was entitled to notice of the entry of the judgment or order
sought to be appealed but did not receive the notice from the
district court or any party within 21 days after entry; and (c) the
court finds that no party would be prejudiced. Fed. R. App. P.
4(a)(6).
Here, the record is unclear as to when Gray received
notice of the entry of the court’s order denying his § 2255 motion.
Accordingly, we remand the case to the district court for the court
to determine whether Gray can satisfy the requirements of Rule
4(a)(6). See Ogden v. San Juan County, 32 F.3d 452, 454 (10th Cir.
1994). The record, as supplemented, will then be returned to this
court for further review.
REMANDED
declaration under penalty of perjury or a notarized statement.
2
Gray cannot benefit from Rule 4(a)(5) because he filed his
notice of appeal more than thirty days after the expiration of the
appeal period. See Fed. R. App. P. 4(a)(5).
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