Matthew Davis v. Tracy John, No. 11-7231 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-7231 MATTHEW DAVIS, Petitioner - Appellant, v. TRACY W. JOHNS, Warden, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:10-hc-02189-FL) Submitted: December 15, 2011 Decided: December 20, 2011 Before GREGORY, SHEDD, and DAVIS, Circuit Judges. Dismissed by unpublished per curiam opinion. Matthew Davis, Appellant Pro Se. William Ellis Boyle, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Matthew Davis seeks to appeal the district court s order dismissing without prejudice his 28 U.S.C. § 2241 (2006) petition. 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 of jurisdictional requirement. 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 July 7, 2011. The notice of appeal was filed on September 7, 2011, one day outside of the appeal period. * Because Davis failed to to extension appeal. file or a timely reopening of notice the of appeal appeal or period, we obtain dismiss an the We dispense with oral argument because the facts and * The record indicates that Davis delivered the notice of appeal to prison officials for mailing to the court on September 7, 2011. See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266 (1988). 2 legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. DISMISSED 3

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