US v. Michael McClain

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:11-cr-00477-HMH-1,7:14-cv-02671-HMH Copies to all parties and the district court/agency. [999725073]. Mailed to: Michael Preston McClain. [15-6489]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6489

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL PRESTON MCCLAIN,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.
Henry M. Herlong, Jr., Senior
District Judge. (7:11-cr-00477-HMH-1; 7:14-cv-02671-HMH )

Submitted:

December 10, 2015

Decided:

December 28, 2015

Before GREGORY, SHEDD, and KEENAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Michael Preston McClain, Appellant Pro Se.
Elizabeth Jean
Howard, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Michael
appeal

the

Preston

McClain,

district

court’s

a

federal

order

prisoner,

granting

the

seeks

to

Government’s

motion for summary judgment and dismissing his 28 U.S.C. § 2255
(2012) motion to vacate.

We granted a limited remand to the

district court for further factual development on the issue of
whether

McClain

noted

a

timely

appeal.

United

States

v.

McClain, 612 F. App’x 679 (4th Cir. 2015) (No. 15-6489).
The

district

clear error.

court’s

findings

of

fact

are

reviewed

for

Fed. R. Civ. P. 52(a)(6); see Ray v. Clements, 700

F.3d 993, 1012 (7th Cir. 2012) (applying clear error review to
district

court’s

determination).

factual
A

findings

finding

is

in

prison

“clearly

mailbox

erroneous”

rule

when

the

reviewing court “is left with the definite and firm conviction
that

a

Bessemer

mistake
City,

marks omitted).

has
470

been
U.S.

committed.”
564,

573

Anderson

(1985)

v.

(internal

City

of

quotation

The district court concluded, based on evidence

presented by the Government and in the absence of a response by
McClain, that the notice of appeal was given to prison officials
for

mailing

on

March

31,

2015,

beyond

the

applicable

appeal

period.
When the United States or its officer or agency is a party,
the notice of appeal must be filed no more than 60 days after
the entry of the district court’s final judgment or order, Fed.
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R. App. P. 4(a)(1)(B), 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
January 8, 2015.

The court did not clearly err in finding that

the notice of appeal was filed on March 31, 2015.
appeal was untimely.

Thus, the

Because McClain failed to file a timely

notice of appeal or to obtain an extension or reopening of the
appeal period, we dismiss the appeal for lack of jurisdiction.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

DISMISSED

3