Ira Hayes v. George Hagan

Filing 920091229

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-7411

IRA HAYES, a/k/a Ira D. Hayes, Petitioner - Appellant, v. GEORGE HAGAN, Warden, Allendale Correctional Institution, Respondent - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Anderson. Patrick Michael Duffy, District Judge. (8:08-cv-01628-PMD)

Submitted:

December 17, 2009

Decided:

December 29, 2009

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Ira Hayes, Appellant Pro Se. Donald John Zelenka, Deputy Assistant Attorney General, Melody Jane Brown, Assistant Attorney General, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Ira Hayes seeks to appeal the district court's orders (1) accepting the recommendation of the magistrate judge and dismissing his 28 U.S.C. § 2254 (2006) petition for lack of

prosecution, and (2) summarily denying his Fed. R. Civ. P. 60(b) motion for reconsideration. have jurisdiction to We first must address whether we the district court's order

review

dismissing Hayes' § 2254 petition.

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). Browder This appeal period is "mandatory and jurisdictional." v. Dir., Dep't of Corr., 434 U.S. 257, 264 (1978)

(internal quotation marks and citation omitted); see Bowles v. Russell, 551 U.S. 205, 214 (2007). The district court's order dismissing the § 2254 The

petition was entered on the docket on February 23, 2009.

notice of appeal was filed, at the earliest, on July 28, 2009. Because Hayes failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we

dismiss this portion of the appeal for lack of jurisdiction. Turning to Hayes' timely appeal of the district

court's order denying the Rule 60(b) motion, the order is not 2

appealable

unless

a

circuit

justice

or

judge

issues

a

certificate of appealability. Reid v. Angelone, of 369 F.3d

28 U.S.C. § 2253(c)(1) (2006); 363, will 369 not (4th issue Cir. 2004). "a

A certificate

appealability

absent

substantial showing of the denial of a constitutional right." 28 U.S.C. by § 2253(c)(2) (2006). that A prisoner satisfies would this find

standard

demonstrating

reasonable

jurists

that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-

El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). that We have independently has not made reviewed the the record and

conclude

Hayes

requisite

showing.

Accordingly, we deny a certificate of appealability and dismiss the appeal of the district court's order denying Rule 60(b)

relief. legal before

We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional

contentions the court

would

process. DISMISSED

3