Stuart Tompkins v. David Mitchell

Filing 920100304

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7224 STUART WAYNE TOMPKINS, Plaintiff - Appellant, v. DAVID MITCHELL, Superintendent, Defendant - Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Graham C. Mullen, Senior District Judge. (1:08-cv-00322-GCM) Submitted: February 17, 2010 Decided: March 4, 2010 Before WILKINSON, GREGORY, and SHEDD, Circuit Judges. Remanded by unpublished per curiam opinion. Stuart Wayne Tompkins, Appellant Pro Se. Assistant Attorney General, Raleigh, Appellee. Yvonne Bulluck Ricci, North Carolina, for Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Stuart court's action. order Wayne Tompkins relief in seeks his to 42 appeal U.S.C. the district (2006) denying 1983 The district court entered its order on April 14, 2009. Attached Tompkins filed his notice of appeal on June 23, 2009. to his notice of appeal, Tompkins provided a sworn statement that he did not receive notice of the district court's order until June 21, 2009. Parties are accorded thirty days after the entry of the district court's final judgment or order to note an appeal, Fed. R. App. P. 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). is "mandatory and jurisdictional." This appeal period Browder v. Dir., Dep't of Corr., 434 U.S. 257, 264 (1978) (internal quotation marks and citation (2007). Tompkins' notice of appeal is clearly untimely. omitted); see Bowles v. Russell, 551 U.S. 205, 214 However, we construe Tompkins' notice of appeal as a motion to reopen the time to appeal. See United States v. Feuver, 236 Accordingly, we remand the F.3d 725, 729 n.7 (D.C. Cir. 2001). case to the district court for the limited purpose of permitting that court to determine whether Tompkins can satisfy the requirements for reopening the appeal period set forth in Rule 2 4(a)(6). See Ogden v. San Juan County, 32 F.3d 452, 454 (10th The record, as supplemented, will then be returned Cir. 1994). to this court for further consideration. REMANDED 3

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