Edward James Egan v. Honorable Glen Conrad, No. 11-6470 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-6470 EDWARD JAMES EGAN, SR., Petitioner Appellant, v. HONORABLE GLEN CONRAD, United States District Court, Respondent Appellee. No. 11-6471 EDWARD JAMES EGAN, SR., Petitioner Appellant, v. HONORABLE GLEN CONRAD, United States District Court; HONORABLE SAMUEL G. WILSON, United States District Court, Respondents Appellees. Appeals from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge; James C. Turk, Senior District Judge. (7:11-cv-00004sgw-mfu; 7:11-cv-00040-jct-mfu) Submitted: July 21, 2011 Decided: July 26, 2011 Before NIEMEYER and Senior Circuit Judge. GREGORY, Circuit Judges, and HAMILTON, No. 11-6470 dismissed in part, affirmed in part; No. 11-6471 dismissed by unpublished per curiam opinion. Edward James Egan, Sr., Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. 2 PER CURAIM: In these consolidated appeals, Edward James Egan, Sr., seeks to appeal the district 28 U.S.C. § 2254 (2006) court s petition, order appeals dismissing the court s his order denying his self-styled Motion for Appearance to Testify in a [P]ending district [M]atter court s (No. order 11-6470), treating and his seeks to self-styled appeal the Notice and Motion for a writ of error coram nobis and pursuant to Fed. R. Civ. P. § 2254 60(b) ( Egan s petition, and Rule 60(b) dismissing motion ) it as on a successive that basis. (No. 11-6471). 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. district Bowles v. Russell, 551 U.S. 205, 214 (2007). court s order dismissing Egan s entered on the docket on January 12, 2011. was filed on February 25, 2011. * * § 2254 petition The was The notice of appeal Because Egan failed to file a 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 (Continued) 3 timely notice of appeal or to obtain an extension or reopening of the appeal period, we dismiss the appeal of the district court s order denying Egan s § 2254 petition for lack of jurisdiction. With respect to Egan s appeal of the district court s order denying his Motion for Appearance to Testify in a [P]ending [M]atter, we have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated Egan v. Conrad, No. 7:11-cv-00004-sgw- by the district court. mfu (W.D. Va. Feb. 11, 2011). Accordingly, in appeal No. 11-6470, we dismiss in part and affirm in part. Turning construed petition. court s Egan s to Rule Egan s finding appeal 60(b) motion, that No. a 11-6471, motion however, prior as the a district successive challenged § 2254 petition the was court § 2254 district untimely. Because the motion did not directly attack Egan s conviction or sentence, but rather asserted a defect in the collateral review process, it constituted a true Rule 60(b) motion. See Gonzalez v. Crosby, 545 U.S. 524, 535-36 & n.7 (2005); United States v. Winestock, 340 F.3d 200, 206-08 (4th Cir. 2003). order denying a Rule 60(b) motion, Egan To appeal an must establish the court. See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266, 276 (1988). 4 entitlement to a certificate of appealability. § 2253(c)(1)(A) (2006); Reid v. Angelone, See 28 U.S.C. 369 F.3d 363, 369 (4th Cir. 2004). A certificate of appealability will not issue absent a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). on the merits, demonstrating district that court s debatable or a When the district court denies relief prisoner reasonable assessment wrong. satisfies Slack jurists this would of the v. McDaniel, standard find constitutional 529 U.S. by that the claims is 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Egan has not made the requisite showing. Accordingly, in appeal No. 11-6471, we deny a certificate of appealability and dismiss the appeal. facts and legal We dispense with oral argument because the contentions are 5 adequately presented in the materials before the court and argument would not aid the decisional process. No. 11-6470, DISMISSED IN PART, AFFIRMED IN PART No. 11-6471, DISMISSED 6

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