UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7803
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EDWARD DEVON SINGLETARY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-00-314; CA-03-240-1)
Submitted: December 9, 2005 Decided: January 4, 2006
Before WIDENER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Remanded by unpublished per curiam opinion.
Edward Devon Singletary, Appellant Pro Se. Robert Albert Jamison
Lang, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Edward Devon Singletary seeks to appeal the district
court’s order denying his motion filed pursuant to 28 U.S.C. § 2255
(2000). In civil actions in which the United States or an officer
or agency thereof is a party, all parties are accorded sixty days
after the entry of the district court’s final judgment or order to
note an appeal, see Fed. R. App. P. 4(a)(1)(B), 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). These
time periods are “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)).
We remanded this case to the district court for the court
to determine whether Singletary timely filed a motion to extend the
appeal period under Rule 4(a)(5). See United States v. Singletary,
88 F. App’x 652 (4th Cir. 2004) (unpublished). After reviewing the
parties’ arguments on remand, the magistrate judge found that
prison officials collected legal mail daily on weekdays and that,
because the mail log indicated the notice of appeal was accepted by
the mail room on Monday, November 3, 2003, Singletary deposited the
mail in the legal mail box no earlier than Friday, October 31,
2003, two days after the excusable neglect period expired. Thus,
the magistrate judge apparently concluded that the appeal period
could not be extended. See Hensley v. Chesapeake & O. Ry. Co., 651
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F.2d 226, 228 (4th Cir. 1981) (finding that expiration of time
limits in Rule 4 deprives court of jurisdiction over case). The
record was then returned to us for further review.
It appears from our review of the record that the
magistrate judge’s order may be a dispositive ruling as it
potentially ends Singletary’s ability to pursue his appeal. See
Vitols v. Citizens Banking Co., 984 F.2d 168, 169-70 (6th Cir.
1993) (holding that “a magistrate judge, acting pursuant to . . .
§ 636(b)(1) . . . , has no authority to issue a dispositive ruling
on a motion to certify a district court order for interlocutory
appeal under [28 U.S.C.] § 1292(b) [(2000)]”). Thus, the
magistrate judge only is authorized under 28 U.S.C.A.
§ 636(b)(1)(B) (West Supp. 2005) to make a recommendation to the
district court. Once the magistrate judge files a report and
recommendation, the parties have ten days to object. 28 U.S.C.A.
§ 636(b)(1)(C). A district court reviews “de novo . . . those
portions of the report . . . to which objection is made.” Id.
Because the parties did not have an opportunity to object
to the magistrate judge’s findings, we remand the case to the
district court for the limited purposes of providing notice of the
right to file objections and of allowing the district court to
conduct the appropriate review. The record, as supplemented, will
then be returned to this court for further consideration.
REMANDED
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