Doni Terrele Anderson v. MR. KENNETH NELSON, Warden

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-6979
DONI TERRELE ANDERSON,
Petitioner - Appellant,
v.
MR. KENNETH NELSON, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Cameron McGowan Currie, Senior District Judge. (2:22-cv-01032-CMC)
Submitted: February 29, 2024 Decided: May 30, 2024
Before RICHARDSON, RUSHING, and HEYTENS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Doni Terrele Anderson, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Doni Terrele Anderson seeks to appeal the district court’s order accepting the
recommendation of the magistrate judge and dismissing Anderson’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 order on August 29, 2023. Anderson filed the notice
of appeal no earlier than September 29, 2023.* Because Anderson failed to file a timely
notice of appeal or to obtain an extension or reopening of the appeal period, we dismiss the
appeal.
* Anderson did not date his notice of appeal. For the purpose of this appeal, we
assume that the postmark date appearing on the envelope containing the notice of appeal
is the earliest date Anderson could have delivered the notice to prison officials for mailing
to the court. Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988). While
both evidence such as a date stamp and a litigant’s certification may be used to determine
the timeliness of a prisoner’s notice of appeal, Anderson’s filings contained no “declaration
in compliance with 28 U.S.C. § 1746—or a notarized statement—setting out the date of
deposit and stating that first-class postage is being prepaid.” See Fed. R. App. P.
4(c)(1)(A). The postmark on Anderson’s envelope is dated September 29, and the envelope
also bears a notation that the notice was given to prison officials for mailing on September
30. We give Anderson the benefit of the earlier date.

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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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