Edward Mercer v. David Ballard

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:12-cv-00040-JPB-DJJ Copies to all parties and the district court/agency. [999414643]. Mailed to: appellant. [14-6520]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-6520

EDWARD J. MERCER,
Petitioner - Appellant,
v.
WARDEN DAVID BALLARD,
Respondent - Appellee.

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-00040-JPB-DJJ)

Submitted:

July 30, 2014

Decided:

August 13, 2014

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Edward J. Mercer, Appellant Pro Se.
Robert David Goldberg,
Assistant Attorney General, 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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Edward J. Mercer seeks to appeal the district court’s
April 9, 2013 order declining in part to adopt the magistrate
judge’s report and recommendation and dismissing several of his
28

U.S.C.

§ 2254

(2012)

claims

as

untimely

Terrorism and Effective Death Penalty Act.

under

the

Anti-

The April 9, 2013

order became final upon the district court’s ruling, on August
3,

2013,

on

the

remainder

of

Mercer’s

§ 2254

petition.

We

dismiss the appeal for lack of jurisdiction because the April 3,
2014 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 disposed of the last of Mercer’s
§ 2254 claims by final order entered on August 2, 2013.

Mercer

filed his notice of appeal on April 3, 2014, * outside the thirty*

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

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day appeal period.

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Mercer’s filing of a motion to alter or

amend judgment under Federal Rules of Civil Procedure 59(e) and
60, filed on March 20, 2014, did not toll the thirty-day appeal
period.

See Fed. R. App. P. 4(a)(4)(A)(iv), (vi); Fed. R. Civ.

P. 59(e).
Because

Mercer

failed

to

file

a

timely

notice

of

appeal or to obtain an extension or reopening of the appeal
period, we dismiss the appeal.

We dispense with oral argument

because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
DISMISSED

3