Clark Thomas v. McKendley Newton ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-7159
CLARK D. THOMAS,
Petitioner - Appellant,
v.
MCKENDLEY NEWTON, Warden of Allendale Correctional Institution; ALAN M.
WILSON, Attorney General of South Carolina,
Respondents - Appellees.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Margaret B. Seymour, Senior District Judge. (2:19-cv-03179-MBS)
Submitted: March 16, 2023 Decided: June 16, 2023
Before WYNN and RICHARDSON, Circuit Judges, and KEENAN, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Clark D. Thomas, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Clark D. Thomas seeks to appeal the district court’s orders dismissing his 28 U.S.C.
§ 2254 petition and denying reconsideration of its order dismissing his § 2254 petition. In
civil cases, parties have 30 days after the entry of the district court’s final 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), and “an appeal from denial of [Fed. R. Civ. P.] 60(b)
relief does not bring up the underlying judgment for review,” Aikens v. Ingram, 652 F.3d
496, 501 (4th Cir. 2011) (en banc) (internal quotation marks omitted). The district court’s
order dismissing Thomas’ § 2254 petition was entered on March 24, 2021. The notice of
appeal was filed no earlier than July 3, 2021. Thomas’ appeal from the dismissal of his
petition is untimely, he did not obtain an extension or reopening of the appeal period, and
his motion for reconsideration did not extend the appeal period because it was not filed
within the period for seeking relief under Fed. R. Civ. P. 52 or Fed. R. Civ. P. 59(e). See
Parker v. Bd. of Pub. Utils., 77 F.3d 1289, 1291 (10th Cir. 1996) (holding that Fed. R. Civ.
P. 59(e) time period is triggered by entry of judgment, not service of notice). Accordingly,
we dismiss this portion of the appeal for lack of jurisdiction.
Thomas also seeks to appeal the district court’s order denying on the merits his
motion to reconsider the court’s prior order denying relief on his § 2254 petition. Because
Thomas’ motion was not filed within 28 days after the entry of the district court’s order
dismissing the action, the motion is properly construed as filed pursuant to Fed. R. Civ. P.
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60(b). See Fed. R. Civ. P. 52(b), 59(e) (providing 28-day filing period); MLC Auto., LLC
v. Town of S. Pines, 532 F.3d 269, 277-78 (4th Cir. 2008) (explaining that postjudgment
motions should be construed based on time period within which they are filed). The order
is not appealable unless a circuit justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1)(A); see generally United States v. McRae, 793 F.3d 392, 400 & n.7
(4th Cir. 2015). 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). When the district court
denies relief on the merits, a prisoner satisfies this standard by demonstrating that
reasonable jurists could find the district court’s assessment of the constitutional claims
debatable or wrong. See Buck v. Davis, 580 U.S. 100, 115-17 (2017). When the district
court denies relief on procedural grounds, the prisoner must demonstrate both that the
dispositive procedural ruling is debatable and that the petition states a debatable claim of
the denial of a constitutional right. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing
Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Limiting our review of the record to the issues raised in Thomas’ informal brief, we
conclude that Thomas has not made the requisite showing. See 4th Cir. R. 34(b); see
also Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (“The informal brief is an
important document; under Fourth Circuit rules, our review is limited to issues preserved
in that brief.”). Accordingly, we deny a certificate of appealability and dismiss the appeal.
We deny Thomas’ request to appoint counsel. We dispense with oral argument because
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the facts and legal contentions are adequately presented in the materials before this court
and argument would not aid the decisional process.
DISMISSED
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