Gary Slezak v. Stanley Burtt

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion certificate of appealability (Local Rule 22(a)) [998363452-2] Originating case number: 4:07-cv-00661-RBH Copies to all parties and the district court/agency. [998452048] [09-8246, 10-6395]

Gary Slezak v. Stanley Burtt

Doc. 0

Case: 09-8246 Document: 21

Date Filed: 10/25/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-8246 GARY SLEZAK, Petitioner - Appellant, v. STANLEY BURTT, Respondent - Appellee.

No. 10-6395 GARY SLEZAK, Petitioner - Appellant, v. STANLEY BURTT, Warden of Lieber Correctional Institution, Respondent - Appellee.

Appeals from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:07-cv-00661-RBH) Submitted: October 19, 2010 Decided: October 25, 2010

Before DUNCAN, KEENAN, and WYNN, Circuit Judges.

Dockets.Justia.com

Case: 09-8246 Document: 21

Date Filed: 10/25/2010

Page: 2

No. 10-6395 affirmed; No. 09-8246 dismissed by unpublished per curiam opinion. Gary Slezak, Appellant Pro Se. William Henry Davidson, II, Kenneth Paul Woodington, DAVIDSON & LINDEMANN, PA, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

2

Case: 09-8246 Document: 21

Date Filed: 10/25/2010

Page: 3

PER CURIAM: Gary Slezak seeks to appeal the district court's

orders denying relief on his 28 U.S.C. § 2254 (2006) petition and his Fed. R. Civ. P. 59(e) motion (No. 09-8246), and the district court's order denying his motion to reopen the time for appeal under Fed. R. App. P. 4(a)(6) (No. 10-6395). We dismiss

Appeal No. 09-8246 for lack of jurisdiction because the notice of appeal was not timely filed, and affirm the court's order in Appeal No. 10-6395. 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). "[T]he timely

filing of a notice of appeal in a civil case is a jurisdictional requirement." Bowles v. Russell, 551 U.S. 205, 214 (2007).

The district court's order denying Slezak's Rule 59(e) motion was entered on the docket on September 29, 2009. The

notice of appeal was filed, at the earliest, on December 14, 2009. 1 Pursuant to Rule 4(a)(6), Slezak filed a motion to reopen By his own admission,

the time for appeal on January 6, 2010.
1

This is the date appearing on the notice of appeal. See Fed. R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988). 3

Case: 09-8246 Document: 21

Date Filed: 10/25/2010

Page: 4

Slezak received notice on November 20, 2009, that his Rule 59 motion had been denied. Because he failed to timely file the

motion to reopen within fourteen days thereafter, as required by Rule 4(a)(6), the district court did not abuse its discretion by denying the motion to reopen the appeal period. 2 Accordingly, in

Appeal No. 10-6395, we affirm the district court's denial of Slezak's Rule 4(a)(6) motion. Because Slezak failed to file a

timely notice of appeal or to obtain an extension or reopening of the appeal period in Appeal No. 09-8246, we dismiss that appeal as untimely. Slezak's motion for certificates of

appealability is denied.

We dispense with oral argument because

the facts and legal contentions are adequately presented in the

When notice of the entry of the judgment or order sought to be appealed is not received within twenty-one days of entry, a party may move to reopen the time to file an appeal under Fed. R. App. P. 4(a)(6). Prior to December 1, 2009, the rule required a motion to reopen to be filed within 180 days after the judgment or order was entered or within seven days after the moving party received notice of the entry, whichever was earlier. Effective December 1, 2009, Rule 4(a)(6) was amended to permit the motion to reopen to be filed within 180 days of entry of the judgment or order or within fourteen days after the moving party receives notice, whichever is earlier. Because the relevant dates in this appeal overlap the applicable dates for both versions of the rule, we have given Slezak the benefit of the doubt and applied the more liberal fourteen day period. 4

2

Case: 09-8246 Document: 21

Date Filed: 10/25/2010

Page: 5

materials

before

the

court

and

argument

would

not

aid

the

decisional process. No. 10-6395 AFFIRMED No. 09-8246 DISMISSED

5