Crowe v. Director
Opinion of the Court
Leon Herbert Crowe, II, seeks to appeal the magistrate judge’s orders
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). This appeal period is “mandatory and jurisdictional.” Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960)).
Turning to the appeal of the order denying Crowe’s Rule 60(b) motion, this order is not appealable unless a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 330-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Crowe has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal from the order denying Crowe’s Rule 60(b) motion.
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED
. The parties consented to the magistrate judge's jurisdiction pursuant to 28 U.S.C. § 636(c) (2000).
. Because Crowe is a prisoner and filed his notice of appeal pro se, it is deemed filed on the date he gave it to prison officials for mailing. See Fed. R.App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). Crowe’s notice of appeal was filed, at the earliest, on August 13, 2007, the date he provided on his certificate of service.
Reference
- Full Case Name
- Leon Herbert CROWE, II v. DIRECTOR, Department of Corrections
- Status
- Published