UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6175
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RODNEY MAURICE SAUNDERS,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:04-cr-00406-WDQ-1; 1:08-cv-00874-WDQ)
Submitted: April 8, 2009 Decided: May 26, 2009
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Remanded by unpublished per curiam opinion.
Rodney Maurice Saunders, Appellant Pro Se. Paul M. Tiao,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodney Maurice Saunders seeks to appeal the district
court’s order denying relief on his 28 U.S.C.A. § 2255
(West 2007) motion. The district court’s order was entered on
September 2, 2008. Saunders’ notice of appeal was filed on
January 26, 2009. * In his notice of appeal, Saunders states that
he did not receive notice of the district court’s order until
January 26, 2009.
Where the United States is a party to a civil action,
the parties are accorded sixty days after the entry of the
district court’s final judgment or order to note an appeal, 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). 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)); see Bowles v. Russell,
551 U.S. ____, 127 S. Ct. 2360, 2366 (2007).
Saunders’ notice of appeal is clearly untimely.
However, under Rule 4(a)(6), the district court may reopen the
*
For the purpose of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could
have been properly delivered to prison officials for mailing to
the court. See Fed. R. App. P. 4(c)(1); Houston v. Lack,
487 U.S. 266 (1988).
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time to file an appeal if: (1) the moving party did not receive
notice of the entry of the order within twenty-one days after
entry; (2) the motion is filed within 180 days of entry of the
judgment or order or within seven days of receiving notice from
the court, whichever is earlier; and (3) no party would be
prejudiced. We accordingly remand to the district court to
determine whether Saunders is entitled under Rule 4(a)(6) to the
reopening of the appeal period. The record, as supplemented,
will then be returned to this court for further consideration.
REMANDED
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