Reid v. North Carolina Department of Correction

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7167
LATWANG REID,
Petitioner - Appellant,
versus
NORTH CAROLINA DEPARTMENT OF CORRECTION;
SUPERINTENDENT, Warren Correctional
Institution,
Respondents - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:05-hc-00077-H)
Submitted: December 8, 2006 Decided: January 18, 2007
Before WILLIAMS, GREGORY, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Latwang Reid, Appellant Pro Se. Alvin William Keller, Jr., NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Latwang Reid seeks to appeal the district court’s orders
denying relief on his 28 U.S.C. § 2254 (2000) petition and denying
his motion for reconsideration. With respect to the order denying
Reid’s § 2254 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). This appeal period is “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 was entered on the docket on
March 22, 2006. Reid executed his “objections” on April 13, 2006,
which were properly construed by the district court as a motion for
reconsideration. Because Reid’s motion for reconsideration was
filed more than ten days after entry of judgment, the motion did
not toll the period for appeal of the underlying judgment. Fed. R.
App. P. 4(a)(4)(A); In re Burnley, 988 F.2d 1, 2-3 (4th Cir. 1993)
(construing motion for reconsideration not filed within ten days of
entry of judgment as motion under Rule 60(b)). Therefore, we
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dismiss the appeal of the underlying judgment for lack of
jurisdiction as the notice of appeal was not timely filed.
To the extent that Reid appeals the denial of relief on
his motion for reconsideration, the order is not appealable unless
a circuit justice of judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369
(4th Cir. 2004). A certificate of appealability will not issue
absent “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find that
any assessment of the constitutional claims by the district court
is debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Reid has not
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal. 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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