United States of America, Plaintiff-appellee, v. James Edward Davis, Defendant-appellant, 836 F.2d 547 (4th Cir. 1987)

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US Court of Appeals for the Fourth Circuit - 836 F.2d 547 (4th Cir. 1987) Submitted Oct. 16, 1987. Decided Dec. 17, 1987

James Edward Davis, appellant pro se.

William Corley Lucius, Assistant U.S. Attorney, for appellee.

Before SPROUSE, WILKINSON, and WILKINS, Circuit Judges.


James E. Davis has filed an untimely appeal which shall be dismissed. The procedural history is set forth below. In 1983, Davis was convicted of bank robbery. He appealed his conviction which this Court affirmed in United States v. Davis, 739 F.2d 172 (4th Cir. 1984). Davis then moved for reduction of sentence based on his ill-health; this motion was denied. Davis then moved to vacate his sentence pursuant to 28 U.S.C. § 2255. Both a magistrate and the district court reviewed his claims and found them meritless. The district court denied his motion. Davis moved for reconsideration but the court denied this motion after finding no existence of a meritorious claim.

Six months later, in 1987, Davis moved for correction of sentence alleging deliberate indifference to his medical needs. The court denied the motion as meritless. Two weeks later Davis moved for reconsideration. The court denied this motion after finding nothing illegal in Davis' sentence. Fourteen days later Davis noted his appeal and moved for appointment of counsel.

Davis' appeal must be dismissed for insufficient jurisdiction because his notice of appeal was filed outside the ten-day filing period prescribed by Fed. R. App. P. 4(b). See also United States v. Breit, 754 F.2d 526 (1985). While Davis was notified by this Court of his right to request an extension in which to note his appeal, Davis did not make such a request. Moreover, the district court did not extend Davis' filing period on its own initiative. Therefore, Davis' appeal is untimely. As the dispositive issues recently have been decided authoritatively, we dispense with oral argument, deny Davis' motion for appointment of counsel, and dismiss the appeal.