Dwayne Anthony Hairston, a/k/a Dwyne Hairston v. MR. PRUTTING, Warden

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-6139
DWAYNE ANTHONY HAIRSTON, a/k/a Dwyne Hairston,
Petitioner - Appellant,
v.
MR. PRUTTING, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Elizabeth Kay Dillon, Chief District Judge. (7:21-cv-00441-EKD-JCH)
Submitted: June 27, 2024 Decided: July 15, 2024
Before KING, AGEE, and BENJAMIN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Dwayne Anthony Hairston, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Dwayne Anthony Hairston seeks to appeal the district court’s order granting
Respondent’s motion to dismiss and dismissing as untimely Hairston’s 28 U.S.C. § 2254
petition. We dismiss the appeal for lack of jurisdiction because the notice of appeal was
not timely filed.
In civil cases, parties have 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 entered its dismissal order on December 6, 2022, and the appeal
period expired on January 5, 2023. Hairston’s notice of appeal was dated February 9, 2023,
but was not received by the district court until February 13, 2023—both after expiration of
the 30-day appeal period. However, Hairston attached a document to his notice of appeal
suggesting that he had previously sent a letter to the district court regarding an appeal to
this court. We thus remanded for the district court to determine whether Hairston filed a
timely notice of appeal or whether Hairston sought to extend or reopen the appeal period.
On remand, Hairston did not respond to the district court’s order requesting documents that
might support a finding of excusable neglect or good cause to support an extension of the
appeal period. Accordingly, the district court concluded that Hairston’s notice of appeal
was untimely and that Hairston had not demonstrated excusable neglect or good cause
warranting an extension of the appeal period. Hairston has not contested that finding.

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Accordingly, we dismiss the appeal as untimely. 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

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