UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7826
GREGORY LEE SELLERS,
Petitioner - Appellant,
v.
REUBEN F. YOUNG, Secretary of Corrections
,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Robert J. Conrad,
Jr., District Judge. (1:13-cv-00104-RJC)
Submitted: March 27, 2014 Decided: March 31, 2014
Before MOTZ, Circuit Judge, and HAMILTON and DAVIS, Senior
Circuit Judges.
Dismissed by unpublished per curiam opinion.
Gregory Lee Sellers, Appellant Pro Se. Clarence Joe DelForge,
III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory Lee Sellers seeks to appeal the district
court’s order dismissing as untimely his 28 U.S.C. § 2254 (2012)
petition, and its subsequent order denying his motion for
reconsideration. We dismiss the appeal of the order dismissing
Sellers’s § 2254 petition 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). “[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’s order was entered on the docket
on July 9, 2013. Sellers filed a motion for reconsideration on
August 29, 2013. * The district court denied reconsideration in
an order entered on October 7, 2013, and Sellers filed the
notice of appeal on November 4, 2013. Because Sellers did not
file the motion for reconsideration within twenty-eight days of
the district court’s order dismissing his § 2254 petition, the
*
This is the date Sellers certified he placed the motion in
the mail. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266
(1988).
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period for filing a timely notice of appeal was not tolled as to
that order, and expired on August 8, 2013. See Fed. R. App. P.
4(a)(4). Because Sellers failed to file a timely notice of
appeal or to obtain an extension or reopening of the appeal
period, we dismiss the appeal as to the order dismissing
Sellers’s § 2254 petition as untimely.
The order denying reconsideration is not appealable
unless a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). 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)
(2012). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that the district court’s
assessment of the constitutional claims is debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). When the district court
denies relief on procedural grounds, the prisoner must
demonstrate both that the dispositive procedural ruling is
debatable, and that the petition states a debatable claim of the
denial of a constitutional right. Slack, 529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Sellers has not made the requisite showing. Accordingly,
we deny a certificate of appealability and dismiss the appeal.
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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
4