Kenneth Johnson v. USA, No. 15-51041 (5th Cir. 2016)
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Case: 15-51041 Document: 00513736689 Page: 1 Date Filed: 10/27/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 15-51041 Summary Calendar United States Court of Appeals Fifth Circuit FILED October 27, 2016 Lyle W. Cayce Clerk KENNETH RAY JOHNSON, Petitioner–Appellant, versus UNITED STATES OF AMERICA, Respondent–Appellee. Appeal from the United States District Court for the Western District of Texas USDC No. 3:15-CV-241 Before SMITH, CLEMENT, and GRAVES, Circuit Judges. PER CURIAM: * Kenneth Johnson, federal prisoner # 38827-177, who was convicted of Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 15-51041 Document: 00513736689 Page: 2 Date Filed: 10/27/2016 No. 15-51041 aiding and abetting the distribution of methamphetamine, appeals the dismissal of his purported 28 U.S.C. § 2241 petition. Johnson failed to file a notice of appeal within 60 days of the entry of the judgment of dismissal. See FED. R. APP. P. 4(a)(1)(B)(i). The judgment was entered on August 28, 2015, so the 60th day was October 27, 2015. The notice of appeal was filed the next day, October 28, giving Johnson the benefit of the prison mailbox rule. Nothing in the notice of appeal can be reasonably construed as a motion for extension of time to appeal based on excusable neglect or good cause. See FED. R. APP. P. 4(a)(5). Although the notice of appeal states that the judgment was served on September 21, 2015, it cannot be treated as a motion to reopen the time to appeal based on a claim that Johnson did not receive notice of the entry of judgment within 21 days of entry, see FED. R. APP. P. 4(a)(6)(A), because Johnson did not move to reopen within 14 days after receiving notice of the entry. The time limit for filing a notice of appeal of a civil judgment is jurisdictional, Bowles v. Russell, 551 U.S. 205, 208–14 (2007), so we lack jurisdiction to consider the appeal, which is therefore DISMISSED. Johnson’s motion for appointment of counsel is DENIED. 2
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