Charles Butler v. Gregory Holloway

Filing

OPINION/ORDER DIRECTING LIMITED REMAND filed by JHW, GSA and PAH [4CCA retains jurisdiction]. Originating case number: 1:14-cv-00243-LO-TRJ Copies to all parties and the district court. Mailed to: Charles Butler. [999605384] [15-6131]

Appeal: 15-6131

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Filed: 06/19/2015

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6131

CHARLES LORENZO BUTLER,
Petitioner - Appellant,
v.
GREGORY HOLLOWAY, Warden,
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Liam O’Grady, District
Judge. (1:14-cv-00243-LO-TRJ)

Submitted:

May 28, 2015

Decided:

June 19, 2015

Before WILKINSON, AGEE, and HARRIS, Circuit Judges.

Remanded by unpublished per curiam opinion.

Charles Lorenzo Butler, Appellant Pro Se.
Craig Stallard,
Assistant Attorney General, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Charles Lorenzo Butler seeks to appeal the district court’s
order
remand

dismissing
for

his

28

U.S.C.

consideration

of

§ 2254

whether

(2012)

reopening

petition.
of

the

We

appeal

period is merited.
Parties

are

accorded

30

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
November 3, 2014.

At the earliest, Butler filed his “Motion for

Stay,” construed as a notice of appeal, on January 21, 2015. *
Butler’s notice of appeal is clearly untimely.

However, under

Fed. R. App. P. 4(a)(6), the district court may reopen the time
to file an appeal if:

(1) the moving party did not receive

notice of entry of judgment within 21 days after entry; (2) the
motion is filed within 180 days of entry of judgment or within
*

The pleading is dated January 21, 2015. For the purpose
of this appeal, we assume that this 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, 270 (1988).

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days

of

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receiving

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notice

from

the

court,

whichever

is

earlier; and (3) no party would be prejudiced.
In his notice of appeal, Butler stated that he did not
receive

notice

of

the

district

court’s

order

dismissing

his

action until January 20, 2015, when he received a response from
the district court with regard to his inquiry as to the status
of his case.
permitting

Accordingly, we remand for the limited purpose of

the

district

court

to

determine

whether

Butler’s

notice of appeal should be construed as a motion to reopen the
appeal period, and if so, whether reopening is merited.

The

record, as supplemented, will then be returned to this court for
further consideration.

REMANDED

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