Edward James Egan v. Honorable Glen Conrad

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:11-cv-00004-sgw-mfu Copies to all parties and the district court/agency. [998639973]. Mailed to: Egan. [11-6470, 11-6471]

Appeal: 11-6470

Document: 19

Date Filed: 07/26/2011

Page: 1 of 6

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6470

EDWARD JAMES EGAN, SR.,
Petitioner – Appellant,
v.
HONORABLE GLEN CONRAD, United States District Court,
Respondent – Appellee.

No. 11-6471

EDWARD JAMES EGAN, SR.,
Petitioner – Appellant,
v.
HONORABLE GLEN CONRAD, United States District Court;
HONORABLE SAMUEL G. WILSON, United States District Court,
Respondents – Appellees.

Appeals from the United States District Court for the Western
District of Virginia, at Roanoke.
Samuel G. Wilson, District
Judge; James C. Turk, Senior District Judge.
(7:11-cv-00004sgw-mfu; 7:11-cv-00040-jct-mfu)

Submitted:

July 21, 2011

Decided:

July 26, 2011

Appeal: 11-6470

Document: 19

Date Filed: 07/26/2011

Before NIEMEYER and
Senior Circuit Judge.

GREGORY,

Page: 2 of 6

Circuit

Judges,

and

HAMILTON,

No. 11-6470 dismissed in part, affirmed in part; No. 11-6471
dismissed by unpublished per curiam opinion.

Edward James Egan, Sr., Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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Appeal: 11-6470

Document: 19

Date Filed: 07/26/2011

Page: 3 of 6

PER CURAIM:
In these consolidated appeals, Edward James Egan, Sr.,
seeks

to

appeal

the

district

28 U.S.C.

§ 2254

(2006)

court’s

petition,

order

appeals

dismissing

the

court’s

his
order

denying his self-styled “Motion for Appearance to Testify in a
[P]ending
district

[M]atter”
court’s

(No.

order

11-6470),

treating

and

his

seeks

to

self-styled

appeal

the

“Notice

and

Motion” for a writ of error coram nobis and pursuant to Fed. R.
Civ.

P.

§ 2254

60(b)

(“Egan’s

petition,

and

Rule

60(b)

dismissing

motion”)
it

as

on

a

successive

that

basis.

(No. 11-6471).
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.”
district

Bowles v. Russell, 551 U.S. 205, 214 (2007).

court’s

order

dismissing

Egan’s

entered on the docket on January 12, 2011.
was filed on February 25, 2011. *

*

§ 2254

petition

The
was

The notice of appeal

Because Egan failed to file a

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
(Continued)
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Date Filed: 07/26/2011

Page: 4 of 6

timely notice of appeal or to obtain an extension or reopening
of the appeal period, we dismiss the appeal of the district
court’s

order

denying

Egan’s

§ 2254

petition

for

lack

of

jurisdiction.
With respect to Egan’s appeal of the district court’s
order

denying

his

“Motion

for

Appearance

to

Testify

in

a

[P]ending [M]atter,” we have reviewed the record and find no
reversible error.

Accordingly, we affirm for the reasons stated
Egan v. Conrad, No. 7:11-cv-00004-sgw-

by the district court.
mfu

(W.D.

Va.

Feb.

11,

2011).

Accordingly,

in

appeal

No.

11-6470, we dismiss in part and affirm in part.
Turning
construed
petition.
court’s

Egan’s

to

Rule

Egan’s

finding

appeal
60(b)

motion,

that

No.

a

11-6471,

motion
however,

prior

as

the
a

district

successive

challenged

§ 2254

petition

the
was

court
§ 2254

district
untimely.

Because the motion did not directly attack Egan’s conviction or
sentence, but rather asserted a defect in the collateral review
process, it constituted a true Rule 60(b) motion.

See Gonzalez

v. Crosby, 545 U.S. 524, 535-36 & n.7 (2005); United States v.
Winestock, 340 F.3d 200, 206-08 (4th Cir. 2003).
order

denying

a

Rule

60(b)

motion,

Egan

To appeal an

must

establish

the court. See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S.
266, 276 (1988).

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Appeal: 11-6470

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Date Filed: 07/26/2011

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entitlement to a certificate of appealability.
§ 2253(c)(1)(A)

(2006);

Reid

v.

Angelone,

See 28 U.S.C.

369

F.3d

363,

369

(4th Cir. 2004).
A certificate of appealability will not issue absent
“a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
on

the

merits,

demonstrating
district

that

court’s

debatable

or

a

When the district court denies relief

prisoner
reasonable

assessment

wrong.

satisfies

Slack

jurists

this

would

of

the

v.

McDaniel,

standard

find

constitutional
529

U.S.

by

that

the

claims

is

473,

484

(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
When the district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive procedural
ruling is debatable, and that the petition states a debatable
claim of the denial of a constitutional right.

Slack, 529 U.S.

at 484-85.
We have independently reviewed the record and conclude
that Egan has not made the requisite showing.

Accordingly, in

appeal No. 11-6471, we deny a certificate of appealability and
dismiss the appeal.
facts

and

legal

We dispense with oral argument because the

contentions

are

5

adequately

presented

in

the

Appeal: 11-6470

Document: 19

materials

before

Date Filed: 07/26/2011

the

court

and

Page: 6 of 6

argument

would

not

aid

the

decisional process.

No. 11-6470, DISMISSED IN PART, AFFIRMED IN PART
No. 11-6471, DISMISSED

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