UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7566
MICHAEL MCEVILY,
Petitioner - Appellant,
v.
GENE M. JOHNSON,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior
District Judge. (2:03-cv-00135-HCM)
Submitted: February 20, 2008 Decided: February 27, 2008
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael McEvily, Appellant Pro Se. Stephen R. McCullough,
Assistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael McEvily seeks to appeal the district court’s
order denying his motion to vacate a void order and his motion for
reconsideration. McEvily previously sought to appeal this order,
but we dismissed his appeal because the notice of appeal was not
timely filed. See McEvily v. Johnson, 241 F. App’x 969 (4th Cir.
2007). After that decision, McEvily sought an extension of time to
file a notice of appeal from the district court, pursuant to Fed.
R. App. P. 4(a)(6), which the district court granted. McEvily then
filed another notice of appeal.
Our review of the record leads us to conclude that the
district court erred in granting McEvily’s motion. McEvily stated
in his motion that he received the district court’s order on June
22, 2007. He did not file a motion for extension or reopening of
the appeal period until September 24, 2007.* Rule 4(a)(6)(B)
requires that a motion to reopen the appeal period be filed “within
180 days after the judgment or order is entered or within 7 days
after the moving party receives notice under Federal Rule of Civil
Procedure 77(d) of the entry, whichever is earlier.” Because
McEvily did not file his motion within seven days of receiving
*
We assume that the date appearing on the motion is the
earliest date it could have been properly delivered to prison
officials for mailing to the court. Fed. R. App. P. 4(c);
Houston v. Lack, 487 U.S. 266 (1988).
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notice of the entry of the district court’s order, we dismiss the
appeal.
We dispense with oral argument because the facts and
legal conclusions are adequately presented in the materials before
the court and argument would not aid the decisional process.
DISMISSED
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