Ricky Lamar Turner v. Director, Virginia Department of Corrections

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7317
RICKY LAMAR TURNER,
Petitioner - Appellant,
v.
DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:13-cv-00998-TSE-JFA)
Submitted: January 21, 2015 Decided: January 29, 2015
Before DUNCAN, DIAZ, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Ricky Lamar Turner, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Ricky Lamar Turner seeks to appeal the district
court’s order dismissing his 28 U.S.C. § 2254 (2012) petition as
barred by the statute of limitations. We dismiss the appeal for
lack of jurisdiction because the notice of appeal was not timely
filed.
Parties are accorded thirty 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 December 6, 2013. Turner filed an “Out of Time Petition for
Appeal,” at the earliest, on August 26, 2014.* Although the
district court granted a reopening of the appeal period under
Rule 4(a)(6)(B) and construed the “Out of Time Petition for
Appeal” as a timely notice of appeal, we find that Turner is not
entitled to that relief. The plain language of Rule 4(a)(6)
* Turner dated this document August 26, 2014. We presume
that this is the earliest date it could have been delivered to
prison officials for mailing to the court. Fed. R. App. P.
4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988).

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requires a motion to reopen be filed “within 180 days after the
judgment or order is entered or within 14 days after the moving
party receives notice of the entry, whichever is earlier.” Fed.
R. App. P. 4(a)(6)(B) (emphasis added). Because Turner’s “Out
of Time Petition for Appeal” was filed more than 180 days after
the entry of the district court’s order, the district court
lacked authority to reopen the appeal period. See Hensley v.
Chesapeake & Ohio Ry. Co., 651 F.2d 226, 228 (4th Cir. 1981)
(noting expiration of time limits in Rule 4 deprives the court
of jurisdiction).
Accordingly, we deny Turner’s motions for appointment
of counsel and dismiss the appeal as untimely filed. 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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