UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7413
BENJAMIN HEYWARD,
Petitioner - Appellant,
v.
WARDEN MCKITHER BODISON,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Joseph F. Anderson, Jr.,
District Judge. (6:10-cv-01112-JFA)
Submitted: February 16, 2012 Decided: February 22, 2012
Before SHEDD, KEENAN, and WYNN, Circuit Judges.
Remanded by unpublished per curiam opinion.
Benjamin Heyward, Appellant Pro Se. Donald John Zelenka, Deputy
Assistant Attorney General, Brendan McDonald, OFFICE OF THE
ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Benjamin Heyward seeks to appeal the district court’s
order adopting the magistrate judge’s report and recommendation
and dismissing his 28 U.S.C. § 2254 (2006) petition. Pursuant
to Fed. R. App. P. 4(a)(1), a notice of appeal in a civil case
must be filed with the district court within thirty days after
judgment is entered. “[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 may,
however, extend the filing time if “a party so moves no later
than 30 days after the time prescribed by . . . Rule 4(a)
expires” and the party shows excusable neglect or good cause.
Fed. R. App. P. 4(a)(5)(A)(i)-(ii).
Heyward filed a notice of appeal in the district court
shortly after the expiration of the appeal period but within the
excusable neglect period. See Fed. R. App. P. 4(c)(1);
Houston v. Lack, 487 U.S. 266 (1988). In a letter accompanying
the notice of appeal, Heyward stated that his original notice of
appeal was returned to him as undeliverable. We construe
Heyward’s letter as a timely request for an extension of the
thirty-day appeal period.
Accordingly, we remand this case to the district court
for the limited purpose of enabling the court to determine
whether Heyward has shown excusable neglect or good cause
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warranting an extension of time to appeal. The record, as
supplemented, will then be returned to this court for further
consideration.
REMANDED
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