Franklin McCune v. Teresa Waid
Opinion
Franklin Eugene McCune seeks to appeal the district court’s order adopting the magistrate judge’s recommendation and dismissing his 28 U.S.C. § 2254 (2006) motion. We dismiss his appeal for lack of jurisdiction because the notice of appeal was not timely filed.
In civil cases like McCune’s, parties are accorded thirty days after entry of the district court’s final judgment or order to note an appeal. Fed. R.App. P. 4(a)(1)(A). The order that McCune seeks to appeal was entered on June 7, 2012. McCune thus had thirty days, or until Monday, July 9, 2012, in which to note an appeal. See Fed. RApp. P. 4(a)(1)(A) & 26(a)(1)(C). Nevertheless, McCune filed his notice of appeal, at earliest, on October 2, 2012— almost three months too late. *
Because “the timely filing of a notice of appeal in a civil case is a jurisdictional requirement,” we lack jurisdiction to consider Robinson’s claims. Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2860, 168 L.Ed.2d 96 (2007). Accordingly, we dis *240 miss McCune’s appeal. 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.
For the purpose of this appeal, we assume that the date appearing on the notice of appeal is the earliest date it could have been properly delivered to prison officials for mailing to the court. Fed. R.App. P. 4(c); Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).
Reference
- Full Case Name
- Franklin Eugene McCUNE, Petitioner-Appellant, v. Teresa WAID, Warden W. Va., Respondent
- Status
- Unpublished