Hammond v. Bush

404 F. App'x 729

Opinion

Dismissed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

John Edward Hammond seeks to appeal the district court’s order adopting the recommendation of the magistrate judge and granting summary judgment for the Defendants in Hammond’s 42 U.S.C. § 1983 (2006) action. We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed.

Parties are accorded thirty days after the entry of the district court’s final judgment or order to note an appeal, Fed. R.App. P. 4(a)(1)(A), unless the district court extends the appeal period under Fed. RApp. 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 March 15, 2010. The notice of appeal was filed, at the earliest, on May 24, 2010.

* Because Hammond failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we dismiss the appeal. We deny Hammond’s motions for appointment of counsel. 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.

730 404 FEDERAL APPENDIX This case was not selected for publication in the Federal Reporter UNPUBLISHED UNITED STATES of America, Plaintiff — Appellee, v. Jerry HEADEN, Defendant — Appellant. No. 08-4879. United States Court of Appeals, Fourth Circuit. Submitted: Nov. 15, 2010. Decided: Dec. 7, 2010. Appeal from the United States District Court for the Southern District of West Virginia, at Bluefield. David A. Faber, Senior District Judge. (l:07-cr-00140-l). Stephen Stockton, Robinson & McElwee, PLLC, Charleston, West Virginia, for Appellant. Miller A. Bushong, III, Assistant United States Attorney, Beckley, West Virginia, for Appellee. Before WILKINSON, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jerry Headen waived his right to an indictment and pled guilty, pursuant to a written plea agreement, to a criminal information charging conspiracies to distribute oxycodone, in violation of 21 U.S.C. § 846 (2006), and to commit money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)©, (h)(2006). The district court imposed concurrent sentences of 180 months of imprisonment, within the sentencing guidelines ranges of 168 to 210 months of imprisonment. On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), noting no meritorious issues for appeal, but questioning whether Headen’s sentence was procedurally unreasonable for failure of the district court to adequately state on the record the 18 U.S.C. § 3553(a) (2006) factors it considered. Headen was advised of his right to file a pro se supplemental brief, but has not filed a brief. Finding no reversible error, we affirm. We have reviewed the record and conclude that the district court fully complied with the requirements of Fed.R.Crim.P. 11 and ensured that Headen’s plea was knowing and voluntary and supported by a factual basis. We also conclude that the 180-month sentence imposed by the district court is procedurally and substantively reasonable. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (review of sentence is for abuse of discretion). In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm. This court requires that counsel inform Headen, in writing, of his right to petition the Supreme Court of the United States for further review. If Headen requests that a petition be filed, but counsel believes that such filing would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Headen. 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.

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).