US v. Byron Mitchell, No. 14-7165 (4th Cir. 2014)

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The court issued a subsequent related opinion or order on April 24, 2015.

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-7165 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BYRON MITCHELL, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:11-cr-00525-PJM-1; 8:13-cv-01551-PJM) Submitted: December 16, 2014 Before DUNCAN Circuit Judge. and DIAZ, Circuit Decided: Judges, December 18, 2014 and DAVIS, Senior Remanded by unpublished per curiam opinion. Byron Mitchell, Appellant Pro Se. Sujit Raman, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Byron Mitchell seeks to appeal the district court’s orders denying relief on his 28 U.S.C. § 2255 (2012) and Fed. R. Civ. P. 59(e) motions. Parties are accorded sixty days after the entry of the district court’s final judgment or order to note an appeal. Fed. R. App. P. 4(a)(1)(B). The district court may, however, extend the time for filing a notice of appeal if a party so within thirty appeal original moves period and days after demonstrates good cause for the extension. expiration excusable of neglect the or Fed. R. App. P. 4(a)(5)(A)(i)- (ii); Washington v. Bumgarner, 882 F.2d 899, 900–01 (4th Cir. 1989). “[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 final order dismissing Mitchell’s Rule 59(e) motion was entered May 22, 2014. Mitchell filed his notice of appeal, at the earliest, on July 30, 2014, nine days after the appeal period expired. 266, 276 (1988). beyond the See Houston v. Lack, 487 U.S. Because Mitchell’s notice of appeal was filed expiration of the appeal period but within the thirty-day excusable neglect period and offered some excuse for his untimeliness, we construe it as a timely request for an extension of time accompanying Mitchell’s notice of appeal. Accordingly, we remand this case to the district court for the 2 limited purpose of determining whether Mitchell has demonstrated excusable neglect or good cause warranting an extension of the appeal period. The record, as supplemented, will then be returned to this court for further consideration. REMANDED 3