United States v. Byron Mitchell

                                 UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                 No. 14-7165


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

BYRON MITCHELL,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:11-cr-00525-PJM-1; 8:13-cv-01551-PJM)


Submitted:   December 16, 2014                 Decided:   December 18, 2014


Before DUNCAN      and   DIAZ,   Circuit   Judges,    and   DAVIS,   Senior
Circuit Judge.


Remanded by unpublished per curiam opinion.


Byron Mitchell, Appellant Pro Se. Sujit Raman, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Byron Mitchell seeks to appeal the district court’s

orders denying relief on his 28 U.S.C. § 2255 (2012) and Fed. R.

Civ. P. 59(e) motions.            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).              The district court

may, however, extend the time for filing a notice of appeal if a

party    so    moves   within    thirty          days   after   expiration    of   the

original      appeal   period    and    demonstrates        excusable    neglect    or

good cause for the extension.                    Fed. R. App. P. 4(a)(5)(A)(i)-

(ii); Washington v. Bumgarner, 882 F.2d 899, 900–01 (4th Cir.

1989).     “[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 final order dismissing Mitchell’s

Rule 59(e) motion was entered May 22, 2014.                     Mitchell filed his

notice of appeal, at the earliest, on July 30, 2014, nine days

after the appeal period expired.                  See Houston v. Lack, 487 U.S.

266, 276 (1988).           Because Mitchell’s notice of appeal was filed

beyond    the    expiration     of     the       appeal   period   but   within    the

thirty-day excusable neglect period and offered some excuse for

his untimeliness, we construe it as a timely request for an

extension      of   time    accompanying         Mitchell’s     notice   of   appeal.

Accordingly, we remand this case to the district court for the

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limited purpose of determining whether Mitchell has demonstrated

excusable neglect or good cause warranting an extension of the

appeal   period.   The   record,   as   supplemented,   will   then   be

returned to this court for further consideration.

                                                               REMANDED




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