US v. Dwayne McFadden, No. 10-7246 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7246 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DWAYNE MCFADDEN, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:04-cr-00564-TLW-1; 4:07-cv-70091-TLW) Submitted: November 18, 2010 Before SHEDD and Circuit Judge. AGEE, Circuit Decided: Judges, and December 2, 2010 HAMILTON, Senior Dismissed by unpublished per curiam opinion. Dwayne McFadden, Appellant Pro Se. Rose Mary Sheppard Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dwayne McFadden seeks to appeal the district court s order denying his 28 U.S.C.A. ยง 2255 (West Supp. 2010) motion. We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed. When the United States or its officer or agency is a party, the notice of appeal must be filed no more than sixty days after the entry of the district court s final judgment or order, 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). timely filing of a notice jurisdictional requirement. of appeal in a civil case [T]he is a Bowles v. Russell, 551 U.S. 205, 214 (2007). The district court s order was entered on the docket on October 20, 2009. 11, 2010. * The notice of appeal was filed on August Because McFadden failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented * 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, 276 (1988). 2 in the materials before the court and argument would not aid the decisional process. DISMISSED 3
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