Terraine Byers v. Anthony Hathaway, III, No. 11-6181 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6181 TERRAINE SANCHEZ BYERS, Petitioner - Appellant, v. ANTHONY HATHAWAY, III, Respondent - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:07-cv-00290-RJC-DSC) Submitted: July 21, 2011 Before NIEMEYER and Senior Circuit Judge. GREGORY, Decided: Circuit Judges, July 25, 2011 and HAMILTON, Dismissed by unpublished per curiam opinion. Terraine Sanchez Byers, Appellant DelForge, III, Assistant Attorney Carolina, for Appellee. Pro Se. General, Clarence Joe Raleigh, North Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Terraine Sanchez Byers seeks to appeal the district court s and order dismissing accepting Byers the 28 magistrate U.S.C. § 2254 judge s (2006) recommendation petition. We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed. Parties are accorded thirty days after the entry of the district court s final judgment or order to note an appeal, Fed. R. App. P. 4(a)(1)(A), 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). [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 s order was entered on the docket on Dec. 8, 2010. 2011. * The notice of appeal was filed on Jan. 12, Because Byers failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we deny leave to proceed in forma pauperis and dismiss the appeal. We dispense with oral argument * because the facts and legal 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. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266 (1988). 2 contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3

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