Reid v. North Carolina Department of Correction

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-7167

LATWANG REID,

Petitioner - Appellant,

versus

NORTH CAROLINA DEPARTMENT OF CORRECTION;
SUPERINTENDENT, Warren Correctional
Institution,

Respondents - Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:05-hc-00077-H)

Submitted: December 8, 2006 Decided: January 18, 2007

Before WILLIAMS, GREGORY, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Latwang Reid, Appellant Pro Se. Alvin William Keller, Jr., NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Latwang Reid seeks to appeal the district court’s orders

denying relief on his 28 U.S.C. § 2254 (2000) petition and denying

his motion for reconsideration. With respect to the order denying

Reid’s § 2254 petition, we dismiss the appeal for lack of

jurisdiction because the notice of appeal was not timely filed.

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). This appeal period is “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)).

The district court’s order was entered on the docket on

March 22, 2006. Reid executed his “objections” on April 13, 2006,

which were properly construed by the district court as a motion for

reconsideration. Because Reid’s motion for reconsideration was

filed more than ten days after entry of judgment, the motion did

not toll the period for appeal of the underlying judgment. Fed. R.

App. P. 4(a)(4)(A); In re Burnley, 988 F.2d 1, 2-3 (4th Cir. 1993)

(construing motion for reconsideration not filed within ten days of

entry of judgment as motion under Rule 60(b)). Therefore, we

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dismiss the appeal of the underlying judgment for lack of

jurisdiction as the notice of appeal was not timely filed.

To the extent that Reid appeals the denial of relief on

his motion for reconsideration, the order is not appealable unless

a circuit justice of judge issues a certificate of appealability.

28 U.S.C. § 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369

(4th Cir. 2004). 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) (2000). A prisoner satisfies this

standard by demonstrating that reasonable jurists would find that

any assessment of the constitutional claims by the district court

is debatable or wrong and that any dispositive procedural ruling by

the district court is likewise debatable. Miller-El v. Cockrell,

537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484

(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have

independently reviewed the record and conclude that Reid has not

made the requisite showing. Accordingly, we deny a certificate of

appealability and dismiss the appeal. We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

DISMISSED

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