Tyrone Johnson v. Roy Cooper
Filing
OPINION/ORDER DIRECTING LIMITED REMAND [4CCA retains jurisdiction]. Motion disposition in opinion--remanding case for limited purpose [4cca retains jurisdiction] Originating case number: 3:14-cv-00242-FDW. Copies to all parties and the district court. Mailed to: Tyrone Johnson. [999705565] [15-7233]
Appeal: 15-7233
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7233
TYRONE JOHNSON,
Petitioner - Appellant,
v.
ROY COOPER,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:14-cv-00242-FDW)
Submitted:
November 19, 2015
Decided:
November 24, 2015
Before NIEMEYER, KING, and HARRIS, Circuit Judges.
Remanded by unpublished per curiam opinion.
Tyrone Johnson, 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Unpublished opinions are not binding precedent in this circuit.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:
Tyrone Johnson, a North Carolina inmate, seeks to appeal
the
district
(2012)
court’s
federal
order
habeas
dismissing
petition.
The
his
district
order was entered on March 31, 2015.
notice
of
appeal
as
having
been
28
U.S.C.
§ 2254
court’s
final
We construe Johnson’s
filed,
at
the
earliest,
August 4, 2015, the date appearing on that document.
on
See Fed.
R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988).
In his notice of appeal, Johnson stated that he did not receive
notice of the district court’s order until August 3, 2015.
Parties are accorded 30 days after entry of the district
court’s final judgment or order to note an appeal, Fed. R. App.
P.
4(a)(1)(A),
period
under
unless
Fed.
R.
the
district
App.
P.
4(a)(5)
period under Fed. R. App. P. 4(a)(6).
notice
of
appeal
requirement.”
in
a
court
civil
or
extends
the
appeal
reopens
the
appeal
“[T]he timely filing of a
case
is
a
jurisdictional
Bowles v. Russell, 551 U.S. 205, 214 (2007).
Johnson’s notice of appeal is clearly untimely.
However,
under Rule 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 14 days of
receiving notice from the court, whichever is earlier, and (3)
no party would be prejudiced.
We remand for the limited purpose
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of permitting the district court to determine whether Johnson is
entitled to the benefit of Rule 4(a)(6) to reopen the time to
file
an
appeal.
The
record,
as
supplemented,
will
then
be
returned to this court for further consideration.
REMANDED
3
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