Christopher Cain v. Henry Ponton , 545 F. App'x 222 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6829
CHRISTOPHER CAIN,
Petitioner - Appellant,
v.
HENRY PONTON, Warden, Nottoway Correctional Facility,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District
Judge. (2:11-cv-00656-MSD-LRL)
Submitted: October 29, 2013 Decided: November 4, 2013
Before DIAZ and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
John O. Iweanoge, II, IWEANOGE LAW CENTER, Washington, D.C., for
Appellant.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Cain seeks to appeal the district court’s
order dismissing his 28 U.S.C. § 2254 (2006) petition. We
dismiss his appeal for lack of jurisdiction because the notice
of appeal was not timely filed.
In civil cases in which the United States is not a
party, parties are accorded thirty days after the entry of final
judgment or order to note an appeal. Fed. R. App. P.
4(a)(1)(A). The district court may, however, extend the time
for filing a notice of appeal if a party so moves within thirty
days after the expiration of the original appeal period and
demonstrates excusable neglect or good cause for the extension.
Fed. R. App. P. 4(a)(5). The district court may also reopen the
appeal period upon a timely motion by a party. 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 dismissing Cain’s § 2254
petition was entered on March 20, 2013. Thus, Cain had until
April 19, 2013, to file a notice of appeal. Cain filed his
notice of appeal on May 17, 2013. Although the appeal period
may be extended under Fed. R. App. 4(a)(5) or reopened under
Fed. R. App. P. 4(a)(6), Cain has failed to file any motion
seeking relief pursuant to these provisions. See Shah v. Hutto,
2
722 F.2d 1167, 1168-69 (4th Cir. 1983) (en banc) (“A bare notice
of appeal should not be construed as a motion for extension of
time, where no request for additional time is manifest.”).
Because Cain failed to file a timely notice of appeal or to
obtain an extension or reopening of the appeal period, we
dismiss the appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
DISMISSED
3