Gregory Lee Sellers v. Reuben F. Young
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cv-00104-RJC Copies to all parties and the district court/agency. [999326234]. Mailed to: Sellers. [13-7826]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7826
GREGORY LEE SELLERS,
Petitioner - Appellant,
v.
REUBEN F. YOUNG, Secretary of Corrections
,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.
Robert J. Conrad,
Jr., District Judge. (1:13-cv-00104-RJC)
Submitted:
March 27, 2014
Before MOTZ, Circuit
Circuit Judges.
Judge,
Decided:
and
HAMILTON
and
March 31, 2014
DAVIS,
Senior
Dismissed by unpublished per curiam opinion.
Gregory Lee Sellers, Appellant Pro Se.
Clarence Joe DelForge,
III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Gregory
Lee
Sellers
seeks
to
appeal
the
district
court’s order dismissing as untimely his 28 U.S.C. § 2254 (2012)
petition,
and
its
reconsideration.
subsequent
order
denying
his
motion
for
We dismiss the appeal of the order dismissing
Sellers’s § 2254 petition for lack of jurisdiction because the
notice of appeal was not timely filed.
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 was entered on the docket
on July 9, 2013.
Sellers filed a motion for reconsideration on
August 29, 2013. *
The district court denied reconsideration in
an
order
entered
on
October
7,
2013,
notice of appeal on November 4, 2013.
and
Sellers
filed
the
Because Sellers did not
file the motion for reconsideration within twenty-eight days of
the district court’s order dismissing his § 2254 petition, the
*
This is the date Sellers certified he placed the motion in
the mail. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266
(1988).
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period for filing a timely notice of appeal was not tolled as to
that order, and expired on August 8, 2013.
4(a)(4).
See Fed. R. App. P.
Because Sellers failed to file a timely notice of
appeal or to obtain an extension or reopening of the appeal
period,
we
dismiss
the
appeal
as
to
the
order
dismissing
Sellers’s § 2254 petition as untimely.
The
unless
a
order
circuit
appealability.
denying
justice
reconsideration
or
judge
is
issues
a
not
appealable
certificate
28 U.S.C. § 2253(c)(1)(A) (2012).
of
A certificate
of appealability will not issue absent “a substantial showing of
the denial of a constitutional right.”
(2012).
28 U.S.C. § 2253(c)(2)
When the district court denies relief on the merits, a
prisoner
satisfies
this
jurists
would
reasonable
standard
find
by
that
demonstrating
the
district
that
court’s
assessment of the constitutional claims is debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003).
denies
relief
demonstrate
both
on
procedural
that
the
When the district court
grounds,
dispositive
the
prisoner
procedural
ruling
must
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 Sellers has not made the requisite showing.
Accordingly,
we deny a certificate of appealability and dismiss the appeal.
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We
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dispense
contentions
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with
are
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oral
because
argument
adequately
presented
in
the
facts
and
the
materials
legal
before
this court and argument would not aid the decisional process.
DISMISSED
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