USCA4 Appeal: 23-7107      Doc: 6        Filed: 03/01/2024     Pg: 1 of 4




                                            UNPUBLISHED

                               UNITED STATES COURT OF APPEALS
                                   FOR THE FOURTH CIRCUIT


                                              No. 23-7107


        UNITED STATES OF AMERICA,

                            Plaintiff - Appellee,

                     v.

        ANDREW DEAN BAILEY,

                            Defendant - Appellant.



        Appeal from the United States District Court for the District of Maryland, at Greenbelt.
        Lydia Kay Griggsby, District Judge. (8:17-cr-00225-LKG-1)


        Submitted: February 27, 2024                                        Decided: March 1, 2024


        Before WILKINSON, WYNN, and HARRIS, Circuit Judges.


        Remanded by unpublished per curiam opinion.


        Andrew Dean Bailey, Appellant Pro Se.


        Unpublished opinions are not binding precedent in this circuit.
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        PER CURIAM:

                Andrew Dean Bailey was sentenced for drug and firearms offenses in February

        2018.    He filed a 

 motion in February 2019 and a motion for

        compassionate release on August 4, 2022. On August 30, 2022, the district court denied

        the § 2255 motion. The motion for compassionate release remains pending.

                On August 31, 2022, the Office of the Federal Public Defender filed a notice in the

        district court declining to represent Bailey related to his compassionate-release motion.

        Two weeks later, on September 14, 2022, the district court docket reflects two entries: a

        notice of appeal from the denial of the § 2255 motion, and a transmission of that notice of

        appeal to this Court. The documents included in the first entry are 1) a duplicate copy of

        the August 31 notice from the Office of the Federal Public Defender, which appears to be

        an electronic copy rather than a scan, and 2) a scan of an envelope from Bailey to the

        district court clerk’s office, received September 14, 2022. Because the notice from the

        Office of the Federal Public Defender does not appear to be a scan, it is unclear what, if

        anything, was inside the envelope received from Bailey on September 14. That envelope

        does not appear elsewhere on the docket.

                The district court docket reflects that the two entries from September 14 were

        modified on September 15, 2022, to note that they were electronically filed or sent in error.

        Accordingly, no appeal was opened in this Court related to those docket entries. The

        docket provides no further explanation as to what Bailey mailed on September 14, why the

        mailing was originally docketed as a notice of appeal, or why that docket entry was later

        modified to state that it was filed in error.

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               In October 2023, Bailey sent a letter to the district court asking about the status of

        his compassionate release motion; again seeking appointment of counsel; and referring to

        an “appeal,” even though none was yet pending. The district court construed that letter as

        itself a notice of appeal and docketed it as such, leading to the instant case. In his informal

        opening brief filed in this Court, Bailey raised issues related to his § 2255 motion.

               To the extent Bailey sought to appeal the August 2022 denial of his § 2255 motion

        via the October 2023 letter to the district court, that appeal was untimely. When the United

        States or its officer or agency is a party in a civil case, the notice of appeal must be filed

        no more than 60 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, 

 (2007). Because the instant notice of appeal was filed more than a year after

        the § 2255 motion was denied, and the district court has not extended or reopened the

        appeal period, we lack jurisdiction to consider a fresh appeal of the denial of the § 2255

        motion.

               However, it is unclear to us whether the October 2023 letter was actually intended

        as a notice of appeal. Instead, it appears to refer to an already-existing appeal. And, as

        noted, Bailey apparently sent a mailing to the district court which was received on

        September 14, 2022, and which was originally docketed as a notice of appeal. If he did

        indeed file such a notice at that time, it would have been timely. We are concerned that

        Bailey is under the impression that he made such a filing, yet it is unclear to us from the

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        district court docket what he mailed in September 2022 and whether an appeal should have

        been opened at that time.

              Accordingly, we remand the case for the limited purpose of allowing the district

        court to determine whether Bailey timely noted an appeal from the denial of the § 2255

        motion. The record, as supplemented, will then be returned to this Court for further

        consideration.

                                                                                  REMANDED




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