Kevin Gilliard v. Warden Joyner ( 2022 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-6908
KEVIN GILLIARD,
Petitioner - Appellant,
v.
WARDEN JOYNER,
Respondent - Appellee.
Appeal from the United States District Court for the District of South Carolina, at
Greenville. Sherri A. Lydon, District Judge. (6:18-cv-02417-SAL)
Submitted: January 25, 2022 Decided: February 3, 2022
Before WILKINSON, KING, and QUATTLEBAUM, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kevin Gilliard, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Gilliard seeks to appeal the district court’s order accepting the
recommendation of the magistrate judge and dismissing Gilliard’s 28 U.S.C. § 2254petition. We dismiss the appeal for lack of jurisdiction because the notice of appeal was
not timely filed.
In civil cases, parties have 30 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 entered its order on May 6, 2020. Gilliard filed the notice of
appeal on June 11, 2020, * which was after the 30-day appeal period expired but within the
30-day excusable neglect period. On limited remand, the district court found that Gilliard
failed to establish excusable neglect and thus denied his motion for an extension of the
appeal period. Because Gilliard’s notice of appeal was untimely filed and he did not obtain
an extension 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
*
For the purpose of this appeal, we assume that the date appearing on the notice of
appeal is the earliest date Gilliard could have delivered the notice to prison officials for
mailing to the court. Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988).
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