UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7707
CARDELL LAMONT AVENT,
Petitioner - Appellant,
v.
RANDALL C. MATHENA, Warden, Wallens Ridge State Prison,
Respondent – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:11-cv-00605-JAG)
Submitted: February 20, 2013 Decided: February 28, 2013
Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.
Remanded by unpublished per curiam opinion.
Cardell Lamont Avent, Appellant Pro Se. Eugene Paul Murphy,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cardell Lamont Avent seeks to appeal the district
court’s order denying relief on his 28 U.S.C. § 2254 (2006)
petition. Parties in a civil action in which the United States
is not a party have thirty days following entry of a final order
in which to file a notice of appeal. Fed. R. App. P.
4(a)(1)(A). These time periods are mandatory and
jurisdictional. Browder v. Dir., Dep’t of Corr., 434 U.S. 257,
264 (1978); see also Bowles v. Russell, 551 U.S. 205, 214 (2007)
(“[T]he timely filing of a notice of appeal in a civil case is a
jurisdictional requirement.”). However, if a party moves for an
extension of time to appeal within thirty days after expiration
of the original appeal period and demonstrates excusable neglect
or good cause, a district court may extend the time to file a
notice of appeal. Fed. R. App. P. 4(a)(5)(A); Washington v.
Bumgarner, 882 F.2d 899, 900–01 (4th Cir. 1989).
The district court entered judgment against Avent on
August 6, 2012; Avent had until September 5, 2012, to file a
timely notice of appeal. Avent filed his notice of appeal on
September 6, 2012, one day late. ∗ Avent separately filed a
∗
Avent’s notice of appeal is deemed filed when he delivered
it to the prison mailroom on September 6, 2012, with a notarized
statement setting forth the date of deposit and a certificate of
service. See Houston v. Lack, 487 U.S. 266, 276 (1988). The
fact that Avent mistakenly mailed his notice of appeal to this
(Continued)
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motion for extension of time on the same day and within the
thirty-day excusable neglect period. Because this motion
remains pending in the district court, we remand for the limited
purpose of determining whether Avent has demonstrated excusable
neglect or good cause warranting an extension of the thirty-day
appeal period. The record, as supplemented, will then be
returned to this court for further consideration.
REMANDED
court is inconsequential. See Fed. R. App. P. 4(d) (a notice of
appeal mistakenly filed in the court of appeals is considered
filed in the district court on the date so noted).
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