Slezak v. Burtt

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-8246
GARY SLEZAK,
Petitioner - Appellant,
v.
STANLEY BURTT,
Respondent - Appellee.
No. 10-6395
GARY SLEZAK,
Petitioner - Appellant,
v.
STANLEY BURTT, Warden of Lieber Correctional Institution,
Respondent - Appellee.
Appeals from the United States District Court for the District
of South Carolina, at Florence. R. Bryan Harwell, District
Judge. (4:07-cv-00661-RBH)
Submitted: October 19, 2010 Decided: October 25, 2010
Before DUNCAN, KEENAN, and WYNN, Circuit Judges.
No. 10-6395 affirmed; No. 09-8246 dismissed by unpublished per
curiam opinion.
Gary Slezak, Appellant Pro Se. William Henry Davidson, II,
Kenneth Paul Woodington, DAVIDSON & LINDEMANN, PA, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Gary Slezak seeks to appeal the district court’s
orders denying relief on his 28 U.S.C. § 2254 (2006) petition
and his Fed. R. Civ. P. 59(e) motion (No. 09-8246), and the
district court’s order denying his motion to reopen the time for
appeal under Fed. R. App. P. 4(a)(6) (No. 10-6395). We dismiss
Appeal No. 09-8246 for lack of jurisdiction because the notice
of appeal was not timely filed, and affirm the court’s order in
Appeal No. 10-6395.
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 denying Slezak’s Rule 59(e)
motion was entered on the docket on September 29, 2009. The
notice of appeal was filed, at the earliest, on December 14,
2009. 1 Pursuant to Rule 4(a)(6), Slezak filed a motion to reopen
the time for appeal on January 6, 2010. By his own admission,
1
This is the date appearing on the notice of appeal. See
Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276
(1988).
3
Slezak received notice on November 20, 2009, that his Rule 59
motion had been denied. Because he failed to timely file the
motion to reopen within fourteen days thereafter, as required by
Rule 4(a)(6), the district court did not abuse its discretion by
denying the motion to reopen the appeal period. 2 Accordingly, in
Appeal No. 10-6395, we affirm the district court’s denial of
Slezak’s Rule 4(a)(6) motion. Because Slezak failed to file a
timely notice of appeal or to obtain an extension or reopening
of the appeal period in Appeal No. 09-8246, we dismiss that
appeal as untimely. Slezak’s motion for certificates of
appealability is denied. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
2
When notice of the entry of the judgment or order sought
to be appealed is not received within twenty-one days of entry,
a party may move to reopen the time to file an appeal under Fed.
R. App. P. 4(a)(6). Prior to December 1, 2009, the rule
required a motion to reopen to be filed within 180 days after
the judgment or order was entered or within seven days after the
moving party received notice of the entry, whichever was
earlier. Effective December 1, 2009, Rule 4(a)(6) was amended
to permit the motion to reopen to be filed within 180 days of
entry of the judgment or order or within fourteen days after the
moving party receives notice, whichever is earlier. Because the
relevant dates in this appeal overlap the applicable dates for
both versions of the rule, we have given Slezak the benefit of
the doubt and applied the more liberal fourteen day period.
4
materials before the court and argument would not aid the
decisional process.
No. 10-6395 AFFIRMED
No. 09-8246 DISMISSED
5