Franklin McCune v. Teresa Waid
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:12-cv-00001-JPB-DJJ Copies to all parties and the district court/agency. [999050236].. [12-7807]
Appeal: 12-7807
Doc: 7
Filed: 02/25/2013
Pg: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7807
FRANKLIN EUGENE MCCUNE,
Petitioner - Appellant,
v.
TERESA WAID, Warden W. Va.,
Respondent.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.
John Preston Bailey,
Chief District Judge. (2:12-cv-00001-JPB-DJJ)
Submitted:
February 21, 2013
Before AGEE and
Circuit Judge.
DAVIS,
Circuit
Decided: February 25, 2013
Judges,
and
HAMILTON,
Senior
Dismissed by unpublished per curiam opinion.
Franklin Eugene McCune, Appellant Pro Se.
Silas B. Taylor,
OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 12-7807
Doc: 7
Filed: 02/25/2013
Pg: 2 of 3
PER CURIAM:
Franklin Eugene McCune seeks to appeal the district
court’s order adopting the magistrate judge’s recommendation and
dismissing his 28 U.S.C. § 2254 (2006) motion.
We dismiss his
appeal for lack of jurisdiction because the notice of appeal was
not timely filed.
In
civil
cases
like
McCune’s,
parties
are
accorded
thirty days after entry of the district court’s final judgment
or order to note an appeal.
Fed. R. App. P. 4(a)(1)(A).
The
order that McCune seeks to appeal was entered on June 7, 2012.
McCune thus had thirty days, or until Monday, July 9, 2012, in
which to note an appeal.
26(a)(1)(C).
See Fed. R. App. P. 4(a)(1)(A) &
Nevertheless, McCune filed his notice of appeal,
at earliest, on October 2, 2012 — almost three months too late. *
Because “the timely filing of a notice of appeal in a
civil
case
is
a
jurisdictional
requirement,”
jurisdiction to consider Robinson’s claims.
551
U.S.
appeal.
legal
205,
214
(2007).
Accordingly,
we
lack
Bowles v. Russell,
we
dismiss
McCune’s
We dispense with oral argument because the facts and
contentions
are
adequately
*
presented
in
the
materials
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); Houston v. Lack, 487 U.S. 266
(1988).
2
Appeal: 12-7807
before
Doc: 7
this
Filed: 02/25/2013
court
and
Pg: 3 of 3
argument
would
not
aid
the
decisional
process.
DISMISSED
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?