Hill v. Ware

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 4, 2001
• Docket: 01-10645
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 01-10645 _____________________

MACK ORAN HILL,

Plaintiff - Appellant

v.

TRAVIS SCOTT WARE,

Defendant - Appellee

--------------------- Appeal from the United States District Court for the Northern District of Texas, Dallas --------------------- May 31, 2001

Before: KING, Chief Judge, JOLLY, and PARKER, Circuit Judges.

CAROLYN DINEEN KING, Chief Judge:

Mack Oran Hill, a Texas death-row inmate with an execution

date of June 6, 2001, filed a pro se civil rights lawsuit

against the prosecutor at his capital murder trial, alleging

various acts of prosecutorial misconduct. The district court

dismissed the case for failure to state a claim on which relief

may be granted. Although no briefing schedule has been set,

Hill also requests a 30 day extension of time to file his

brief. This court must examine the basis of its jurisdiction on

its own motion if necessary. Mosley v. Cozby, 813 F.2d 659,

660 (5th Cir. 1987). Final judgment was entered in this case

on April 10, 2001. The date on the “verification” in Hill’s

notice of appeal is May 11, 2001, and the certificate of

service is dated May 12, 2001.

Rule 4(a)(1)(A), Fed. R. App. P., requires that the notice

of appeal in a civil case be filed within 30 days of entry of

the judgment or order appealed from. In the case of an inmate,

the notice is timely if it is deposited in the prison mail

system on or before the last day for filing. Rule 4(c)(1).

Hill’s notice of appeal shows on its face that it could not

have been put in the prison mail system within the time

allowed. The time limitation for filing a notice of appeal is

jurisdictional, and the lack of a timely notice mandates

dismissal of the appeal. Mann v. Lynaugh, 840 F.2d 1194, 1197

(5th Cir. 1988).

APPEAL DISMISSED, MOTION FOR EXTENSION OF TIME TO FILE

BRIEF DENIED AS MOOT.