Cornell F. Daye v. David Ballard, No. 17-7417 (4th Cir. 2018)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-7417 CORNELL F. DAYE, Petitioner - Appellant, v. DAVID BALLARD, Warden, Respondent - Appellee. Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Irene C. Berger, District Judge. (5:08-cv-00215) Submitted: June 14, 2018 Decided: October 24, 2018 Before GREGORY, Chief Judge, WYNN, Circuit Judge, and TRAXLER, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Cornell F. Daye, Appellant Pro Se. Zachery Aaron Viglianco, Assistant Attorney General, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Cornell F. Daye seeks to appeal the district court’s order denying his 28 U.S.C. § 2254 (2012) petition. We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed. Parties are accorded 30 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 September 19, 2017. The notice of appeal was filed on October 20, 2017. Because Daye 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 contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 2

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