Tony Wilson v. State of South Carolina

Filing 920090903

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6947

TONY TYRONE WILSON, Petitioner - Appellant, v. STATE OF SOUTH CAROLINA; WARDEN, BROAD RIVER CORRECTIONAL INSTITUTION, Respondents - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Solomon Blatt, Jr., Senior District Judge. (3:09-cv-00303-SB)

Submitted:

August 26, 2009

Decided: September 3, 2009

Before TRAXLER, Judges.

Chief

Judge,

and

GREGORY

and

SHEDD,

Circuit

Remanded by unpublished per curiam opinion.

Tony Tyrone Wilson, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Tony Tyrone Wilson seeks to appeal the district

court's order dismissing as untimely his 28 U.S.C. § 2254 (2006) petition. officer thirty or days or In civil actions in which the United States or its agency after order is the to not a party, of the parties are accorded final P.

entry note an

the

district see

court's R.

judgment

appeal,

Fed.

App.

4(a)(1)(A), 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). jurisdictional." These time periods are "mandatory and

Browder v. Dir., Dep't of Corr., 434 U.S. 257,

264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)); see Bowles v. Russell, 551 U.S. 205, __, 127 S. Ct. 2360, 2366 (2007). The district court's order was entered on March 17, 2009. Wilson signed his notice of appeal on May 18, 2009, and In

the notice was filed in the district court on May 19, 2009. his notice of appeal, Wilson sought to appeal the

district

court's order, "or in the alternative . . . request[ed] [that] his case be `reopened' for further pleadings." We liberally

construe Wilson's statements as requesting an extension of the appeal period under Fed. R. App. P. 4(a)(5)(A). See

2

Washington v.

Bumgarner,

882

F.2d

899,

901

(4th

Cir.

1989);

Myers v. Stephenson, 781 F.2d 1036, 1038-39 (4th Cir. 1986). So construed, the motion for an extension of time was filed within the thirty-day excusable neglect period. * Because

the district court has not ruled on the motion for extension, we remand this case to the district court for the limited purpose of enabling the court to determine whether Wilson has shown

excusable neglect or good cause warranting an extension of the thirty-day appeal period. The record, as supplemented, will

then be returned to this court for further consideration.

REMANDED

For the purpose of this appeal, we assume that the date appearing on the notice of appeal is the earliest date it could have been properly delivered to prison officials for mailing to the court. Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988). The thirtieth day of the excusable neglect period was Saturday, May 16, 2008. Therefore, Wilson had until Monday, May 18, 2008, to move for an extension of time. See Fed. R. App. P. 26(a)(3) (instructing that in computing time periods the last day of the period be included unless that day is a Saturday, Sunday or legal holiday).

*

3