Clark Thomas v. McKendley Newton

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 16, 2023
• Docket: 21-7159
• Status: Unpublished

Opinion

USCA4 Appeal: 21-7159 Doc: 17 Filed: 06/16/2023 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-7159

CLARK D. THOMAS,

Petitioner - Appellant,

v.

MCKENDLEY NEWTON, Warden of Allendale Correctional Institution; ALAN M. WILSON, Attorney General of South Carolina,

Respondents - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Margaret B. Seymour, Senior District Judge. (2:19-cv-03179-MBS)

Submitted: March 16, 2023 Decided: June 16, 2023

Before WYNN and RICHARDSON, Circuit Judges, and KEENAN, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Clark D. Thomas, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-7159 Doc: 17 Filed: 06/16/2023 Pg: 2 of 4

PER CURIAM:

Clark D. Thomas seeks to appeal the district court’s orders dismissing his 28 U.S.C.

§ 2254 petition and denying reconsideration of its order dismissing his § 2254 petition. In

civil cases, parties have 30 days after the entry of the district court’s final 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). “[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 (2007), and “an appeal from denial of [Fed. R. Civ. P.] 60(b)

relief does not bring up the underlying judgment for review,” Aikens v. Ingram, 652 F.3d

496, 501 (4th Cir. 2011) (en banc) (internal quotation marks omitted). The district court’s

order dismissing Thomas’ § 2254 petition was entered on March 24, 2021. The notice of

appeal was filed no earlier than July 3, 2021. Thomas’ appeal from the dismissal of his

petition is untimely, he did not obtain an extension or reopening of the appeal period, and

his motion for reconsideration did not extend the appeal period because it was not filed

within the period for seeking relief under Fed. R. Civ. P. 52 or Fed. R. Civ. P. 59(e). See

Parker v. Bd. of Pub. Utils., 77 F.3d 1289, 1291 (10th Cir. 1996) (holding that Fed. R. Civ.

P. 59(e) time period is triggered by entry of judgment, not service of notice). Accordingly,

we dismiss this portion of the appeal for lack of jurisdiction.

Thomas also seeks to appeal the district court’s order denying on the merits his

motion to reconsider the court’s prior order denying relief on his § 2254 petition. Because

Thomas’ motion was not filed within 28 days after the entry of the district court’s order

dismissing the action, the motion is properly construed as filed pursuant to Fed. R. Civ. P.

2 USCA4 Appeal: 21-7159 Doc: 17 Filed: 06/16/2023 Pg: 3 of 4

60(b). See Fed. R. Civ. P. 52(b), 59(e) (providing 28-day filing period); MLC Auto., LLC

v. Town of S. Pines, 532 F.3d 269, 277-78 (4th Cir. 2008) (explaining that postjudgment

motions should be construed based on time period within which they are filed). The order

is not appealable unless a circuit justice or judge issues a certificate of appealability. 28

U.S.C. § 2253(c)(1)(A); see generally United States v. McRae, 793 F.3d 392, 400 & n.7

(4th Cir. 2015). 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). When the district court

denies relief on the merits, a prisoner satisfies this standard by demonstrating that

reasonable jurists could find the district court’s assessment of the constitutional claims

debatable or wrong. See Buck v. Davis, 580 U.S. 100, 115-17 (2017). When the district

court denies relief on procedural grounds, the prisoner must demonstrate both that the

dispositive procedural ruling is debatable and that the petition states a debatable claim of

the denial of a constitutional right. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing

Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Limiting our review of the record to the issues raised in Thomas’ informal brief, we

conclude that Thomas has not made the requisite showing. See 4th Cir. R. 34(b); see

also Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (“The informal brief is an

important document; under Fourth Circuit rules, our review is limited to issues preserved

in that brief.”). Accordingly, we deny a certificate of appealability and dismiss the appeal.

We deny Thomas’ request to appoint counsel. We dispense with oral argument because

3 USCA4 Appeal: 21-7159 Doc: 17 Filed: 06/16/2023 Pg: 4 of 4

the facts and legal contentions are adequately presented in the materials before this court

and argument would not aid the decisional process.

DISMISSED