John Simmons v. Ennis Oate

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999389725-2] Originating case number: 5:12-hc-02180-FL Copies to all parties and the district court/agency. [999462100]. Mailed to: Simmons. [14-6863]

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Appeal: 14-6863 Doc: 9 Filed: 10/24/2014 Pg: 1 of 3 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6863 JOHN WAYNE SIMMONS, Petitioner - Appellant, v. ENNIS OATES, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:12-hc-02180-FL) Submitted: October 21, 2014 Decided: October 24, 2014 Before SHEDD, DUNCAN, and FLOYD, Circuit Judges. Dismissed by unpublished per curiam opinion. John Wayne Simmons, Appellant Pro Se. Mary Carla Babb, Assistant Attorney General, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 14-6863 Doc: 9 Filed: 10/24/2014 Pg: 2 of 3 PER CURIAM: John Wayne Simmons seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2254 (2012) petition. We dismiss the appeal 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 September 17, 2013. 30, 2014. * The notice of appeal was filed on May Because Simmons failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we deny leave to proceed in forma pauperis and dismiss the appeal. because order We further note that the appeal is duplicative Simmons denying has his § previously 2254 appealed petition. * the We district dispense court’s with oral 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: 14-6863 Doc: 9 Filed: 10/24/2014 Pg: 3 of 3 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

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