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  • Powell v. United States, 4th Cir. (2007)

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal from James Devon Powell. The court dismissed the appeal because Powell's notice of appeal was not timely filed. The district court had dismissed Powell's Rule 60(b) motion as an unauthorized successive 28 U.S.C. § 2255 motion on May 16, 2005, but Powell did not file his notice of appeal until April 21, 2006, beyond the 60 day deadline. As the deadline is mandatory and jurisdictional, the appeals court dismissed the appeal for lack of jurisdiction.

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    Filed: 2007-03-02 Precedential Status: Non-Precedential Docket: 06-6832

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal from James Devon Powell. The court dismissed the appeal because Powell's notice of appeal was not timely filed. The district court had dismissed Powell's Rule 60(b) motion as an unauthorized successive 28 U.S.C. § 2255 motion on May 16, 2005, but Powell did not file his notice of appeal until April 21, 2006, beyond the 60 day deadline. As the deadline is mandatory and jurisdictional, the appeals court dismissed the appeal for lack of jurisdiction.

    Copyright:

    Public Domain
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    3 views3 pages

    Powell v. United States, 4th Cir. (2007)

    Uploaded by

    Scribd Government Docs
    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit dismissing an appeal from James Devon Powell. The court dismissed the appeal because Powell's notice of appeal was not timely filed. The district court had dismissed Powell's Rule 60(b) motion as an unauthorized successive 28 U.S.C. § 2255 motion on May 16, 2005, but Powell did not file his notice of appeal until April 21, 2006, beyond the 60 day deadline. As the deadline is mandatory and jurisdictional, the appeals court dismissed the appeal for lack of jurisdiction.

    Copyright:

    Public Domain
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    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 06-6832

    JAMES DEVON POWELL,


    Plaintiff - Appellant,
    versus
    UNITED STATES OF AMERICA,
    Defendant - Appellee.

    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.
    Malcolm J. Howard,
    District Judge. (5:01-cr-00295-H)

    Submitted:

    February 7, 2007

    Decided:

    March 2, 2007

    Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    James Devon Powell, Appellant Pro Se. Eric Evenson, OFFICE OF THE
    UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    James Devon Powell seeks to appeal the district courts
    order recharacterizing Powells Fed. R. Civ. P. 60(b) motion as a
    successive 28 U.S.C. 2255 (2000) motion and dismissing the motion
    for lack of jurisdiction.

    We dismiss the appeal for lack of

    jurisdiction because the notice of appeal was not timely filed.


    In a civil case, 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 courts 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).
    period is mandatory and jurisdictional.

    This appeal

    Browder v. Dir., Dept

    of Corr., 434 U.S. 257, 264 (1978) (quoting United States v.


    Robinson, 361 U.S. 220, 229 (1960)).
    The district courts order was entered on the docket on
    May 16, 2005.

    The notice of appeal was filed on April 21, 2006.*

    Because Powell failed to file a timely notice of appeal or to


    obtain an extension or reopening of the appeal period, we dismiss
    the appeal.

    We dispense with oral argument because the facts and

    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 (1988).
    - 2 -

    legal contentions are adequately presented in the materials before


    the court and argument would not aid the decisional process.

    DISMISSED

    - 3 -

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