United States v. Kedrio Summerville

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 23, 2019
• Docket: 18-7182
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-7182

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KEDRIO LEKEIS SUMMERVILLE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:15-cr-00100-RAJ-DEM-1; 2:17-cv- 00205-RAJ)

Submitted: April 26, 2019 Decided: May 23, 2019

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

Remanded by unpublished per curiam opinion.

Kedrio Lekeis Summerville, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Kedrio Lekeis Summerville seeks to appeal the district court’s order denying relief

on his 28 U.S.C. § 2255 (2012) motion. Parties are accorded 60 days after the entry of

the district court’s final judgment or order to note an appeal. Fed. R. App. P. 4(a)(1)(B).

The district court may, however, extend the time to file a notice of appeal if a party

moves for an extension of the appeal period within 30 days after the expiration of the

original appeal period and demonstrates excusable neglect or good cause to warrant an

extension. Fed. R. App. P. 4(a)(5); Washington v. Bumgarner, 882 F.2d 899, 900-01 (4th

Cir. 1989). “[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).

The district court’s order was entered on the docket on July 11, 2018. The notice

of appeal was filed on September 19, 2018, a few days after the expiration of the 60-day

appeal period but within the excusable neglect period. See Houston v. Lack, 487 U.S.

266, 276 (1988) (establishing prisoner mailbox rule). Because Summerville’s notice of

appeal offered some excuse for his tardiness, we construe the notice of appeal as a timely

request for an extension of time in which to file an appeal. Accordingly, we remand the

case for the limited purpose of allowing the district court to determine whether the time

for filing a notice of appeal should be extended under Rule 4(a)(5). The record, as

supplemented, will then be returned to this court for further consideration.

REMANDED