United States of America, Respondent, v. Augustine Perez, Petitioner, 931 F.2d 888 (4th Cir. 1991)

Augustine Perez petitions for permission to appeal from the district court's denial of his motion for injunction, filed in his criminal action, by which he sought to halt the government's allegedly malicious prosecution of him. Although 28 U.S.C. § 1292(b), governing petitions for permission to appeal, has no application to criminal proceedings, see United States v. Blackwell, 900 F.2d 742, 746 (4th Cir. 1990), we construe Perez's petition as an appeal under 28 U.S.C. § 1292(a) (1) from a denial of injunctive relief. The appeal is, nevertheless, untimely; the district court denied Perez's motion for injunctive relief on December 10, 1990, at the start of trial, and Perez did not serve this appeal until February 6, 1991, well outside the 10-day appeal period applicable to criminal cases.¹  See Fed. R. App. P. 4(b).

Accordingly, we dismiss Perez's appeal as untimely. This dismissal is, of course, without prejudice to the appeal Perez has noted from the conviction and sentence since entered in his criminal prosecution. We dispense with oral argument because the facts and legal contentions are adequately developed in the materials before the Court and argument would not aid the decisional process.

DISMISSED.