United States v. McNairy

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 23, 2003
• Docket: 02-11104
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 23, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-11104 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DERRICK MCNAIRY, also known as Little D, also known as Little Derrick,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:01-CV-355-P USDC No. 3:99-CR-364-ALL-P --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Derrick McNairy, federal inmate #33456-077, seeks a

certificate of appealability (“COA”) to appeal the denial of his

28 U.S.C. § 2255 motion. McNairy was convicted following entry

of his guilty plea to a charge of possession with intent to

distribute and distribution of cocaine base. He was sentenced to

180 months’ imprisonment and five years’ supervised release.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-11104 -2-

We must, if necessary, examine the basis of our jurisdiction

on our own motion. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.

1987). “The time limitation for filing a notice of appeal is

jurisdictional and lack of a timely notice mandates dismissal of

an appeal.” Robbins v. Maggio, 750 F.2d 405, 408 (5th Cir.

1985). McNairy’s notice of appeal was due within sixty days of

the entry of the judgment or order appealed. FED. R. APP.

P. 4(a)(1)(B).

By judgment entered June 11, 2001, the district court

denied McNairy’s 28 U.S.C. § 2255 motion on the merits. McNairy

filed a pro se notice of appeal bearing a handwritten date of

September 23, 2002. McNairy stated that he did not receive a

copy of the judgment that denied his 28 U.S.C. § 2255 motion and

that he received notice, via a docket sheet entry, of the denial

of his motion no earlier than August 26, 2002. He argues that he

was transferred to another institution on June 13, 2001, did not

receive the judgment, and has shown excusable neglect warranting

a re-opening of the appeal period.

Because McNairy’s notice of appeal was prepared no earlier

than September 23, 2002, it could not have been deposited in the

prison mail system within the prescribed 60-day period and was

untimely. See FED. R. APP. P. 4(c)(1). Because McNairy did not

file a motion pursuant to FED. R. APP. P. 4(a)(5) within “30

days after expiration of the original 60 days specified in

Rule 4(a)(1)(B),” FED. R. APP. P. 4(a)(5) provides no ground for No. 02-11104 -3-

relief. Wilkens v. Johnson, 238 F.3d 328, 330-31 (5th Cir.

2001).

Rule 4(a)(6), FED. R. APP. P., allows the district court to

re-open the time for appeal upon a motion filed within 180 days

of the entry of judgment or within 7 days of the receipt of such

notice, whichever is earlier, provided that the district court

finds that a party was entitled to notice of the entry of

judgment and did not receive such notice within 21 days of its

entry. McNairy’s notice of appeal was not filed within the

180-day period.

“Absent the timely filing of [a FED. R. APP. P. 4(a)(6)]

motion, the court is powerless to reopen the time” for filing a

notice of appeal. Wilkens, 238 F.3d at 331. A party has “a duty

to inquire periodically into the status of [his] litigation,” and

must file a timely notice of appeal whether or not he receives

notice of the entry of an order. Latham v. Wells Fargo Bank,

N.A., 987 F.2d 1199, 1201 (5th Cir. 1993) (interpreting

FED. R. CIV. P. 77(d) and FED. R. APP. P. 4(a)).

Accordingly, the appeal is DISMISSED for lack of

jurisdiction. The COA motion is DENIED as moot.