United States v. James Mainor, Jr.
Opinion
Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
James Branson Mainor, Jr., seeks to appeal the district court’s order accepting the magistrate judge’s recommendation to deny his 28 U.S.C.A. § 2255 (West Supp. 2011) motion, and has filed a motion to proceed in forma pauperis. We deny Mai-nor’s motion to proceed in forma pauperis and dismiss the appeal for lack of jurisdiction because the notice of appeal , was not timely filed.
When the United States or its officer or agency is a party, the notice of appeal must be filed no more than sixty days after the entry of the district court’s final judgment or order, Fed. R.App. P. 4(a)(1)(B), 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, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007).
The district court’s order was entered on the docket on February 8, 2011. The notice of appeal was filed on June 6, 2011. * *264 Because Mainor failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we deny leave to proceed in forma pauperis and dismiss the appeal. 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.
Although Mainor’s notice of appeal was not filed in the district court until June 7, 2011, *264 Mainor's notice of appeal was postmarked on June 6, 2011. See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (holding that a pro se prisoner’s notice of appeal is considered filed the moment it is delivered to prison authorities for mailing to the court).
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff—Appellee, v. James Branson MAINOR, Jr., Defendant—Appellant
- Status
- Unpublished