Josiah Hathaway v. Attorney General, State of Florida

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 18, 2024
• Docket: 24-11130
• Status: Unpublished

Opinion

USCA11 Case: 24-11130 Document: 15-1 Date Filed: 10/18/2024 Page: 1 of 3

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 24-11130 Non-Argument Calendar ____________________

JOSIAH HATHAWAY, Petitioner-Appellant, versus ATTORNEY GENERAL, STATE OF FLORIDA,

Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 1:21-cv-00097-AW-ZCB ____________________ USCA11 Case: 24-11130 Document: 15-1 Date Filed: 10/18/2024 Page: 2 of 3

2 Opinion of the Court 24-11130

Before ROSENBAUM, BRASHER, and ABUDU, Circuit Judges. PER CURIAM: This appeal is DISMISSED, sua sponte, for lack of jurisdic- tion. Josiah Hathaway appeals from the district court’s March 6, 2024, order and judgment denying his 28 U.S.C. § 2254 habeas cor- pus petition. Because it was unclear from the record when Hathaway filed his notice of appeal, we remanded the case to the district court for the limited purpose of determining the date on which Hatha- way filed it. On remand, the district court, after providing Hatha- way with an opportunity to respond, concluded that he had filed his notice of appeal on April 9, 2024. In light of the district court’s factual finding on remand, we conclude that we lack jurisdiction over this appeal because Hatha- way’s notice of appeal is untimely. See Green v. Drug Enf’t Admin., 606 F.3d 1296, 1300 (11th Cir. 2010). The deadline for filing a no- tice of appeal was April 5, 2024, and Hathaway did not file his no- tice of appeal until April 9, 2024. See 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A). Moreover, there is no basis in the record for relief under Fed. R. App. P. 4(a)(5) or 4(a)(6). See 28 U.S.C. § 2107(c); Fed. R. App. P. 4(a)(5)(A), 4(a)(6); Parker v. Strickland, 728 F.2d 1406, 1407 (11th Cir. 1984); Sanders v. United States, 113 F.3d 184, 186 (11th Cir. 1997). USCA11 Case: 24-11130 Document: 15-1 Date Filed: 10/18/2024 Page: 3 of 3

24-11130 Opinion of the Court 3

All pending motions are DENIED as moot. No petition for rehearing may be filed unless it complies with the timing and other requirements of 11th Cir. R. 40-3 and all other applicable rules.