US v. Lemonze Ford

Filing 920091009

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-8041

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. LEMONZE E. FORD, Defendant ­ Appellant.

Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry F. Floyd, District Judge. (7:03-cr-01094-HFF-14; 7:06-cv-02148-HFF)

Submitted:

September 11, 2009

Decided:

October 9, 2009

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Lemonze E. Ford, Appellant Pro Se. Elizabeth Jean Howard, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Lemonze E. Ford seeks to appeal the district court's order denying his 28 U.S.C.A. § 2255 (West Supp. 2009) motion. We dismiss the appeal for lack of jurisdiction because the

notice of appeal was not timely filed. In a civil case, when the United States or its officer or agency is a party, the notice of appeal must be filed no more than sixty days after the entry of the district court's final judgment or order, Fed. R. App. P. 4(a)(1)(B), unless the

district court extends the appeal period under Fed. R. App. P. 4(a)(5), or reopens the appeal period under Fed. R. App. P. 4(a)(6). The requirement of a timely notice of appeal is

mandatory and jurisdictional.

See Bowles v. Russell, 551 U.S.

205, 214 (2007); United States v. Urutyan, 564 F.3d 679, 685 (4th Cir. 2009) (discussing Bowles and the appeal periods under Fed. R. App. P. 4(a)). The district court's order was filed and entered on its docket on July 10, 2008. undated notice of of the appeal on The district court received Ford's September appeal 22, 2008, but after within the the

expiration

sixty-day

period,

excusable neglect period.

Because Ford moved for an extension

of time pursuant to Rule 4(a)(5), we remanded this case to the district court to determine whether Ford could demonstrate

excusable neglect or good cause warranting an extension of the 2

appeal period.

On remand, the district court found that Ford We have

had not established excusable neglect or good cause.

reviewed the record and conclude that the district court did not abuse its discretion in making this determination. Because appeal period the on district court declined or to good extend cause, the we

based

excusable

neglect

dismiss the appeal for lack of jurisdiction. oral argument because in the the facts and legal before

We dispense with contentions the court are and

adequately

presented

materials

argument would not aid the decisional process. DISMISSED

3