Willie Gilmore v. Warden Robert Stevenson, III

Filing

OPINION/ORDER DIRECTING LIMITED REMAND [4CCA retains jurisdiction]. Originating case number: 1:14-cv-04540-RMG Copies to all parties and the district court. Mailed to: Willie Gilmore. [999826090] [15-7598]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7598

WILLIE GILMORE,
Petitioner - Appellant,
v.
WARDEN ROBERT STEVENSON, III,
Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Aiken.
Richard M. Gergel, District Judge.
(1:14-cv-04540-RMG)

Submitted:

April 19, 2016

Before DIAZ and
Circuit Judge.

HARRIS,

Decided:

Circuit

Judges,

and

May 18, 2016

DAVIS,

Senior

Remanded by unpublished per curiam opinion.

Willie Gilmore, Appellant Pro Se.
Donald John Zelenka, Senior
Assistant Attorney General, Kaycie Smith Timmons, Assistant
Attorney General, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Willie Gilmore seeks to appeal the district court’s order
accepting

the

recommendation

of

the

magistrate

judge

and

dismissing his petition filed under 28 U.S.C. § 2254 (2012).
Parties to a civil action are accorded 30 days after the entry
of

the

district

appeal.

court’s

final

judgment

or

Fed. R. App. P. 4(a)(1)(A).

order

to

note

an

However, the district

court may extend the time to file a notice of appeal if a party
moves for an extension of the appeal period within 30 days after
the expiration of the original appeal period and demonstrates
excusable neglect or good cause to warrant an extension.

Fed.

R. App. P. 4(a)(5); see Washington v. Bumgarner, 882 F.2d 899,
900-01 (4th Cir. 1989).

“[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

final

docket on August 13, 2015.
September

17,

2015,

was

judgment

was

entered

on

the

Gilmore’s notice of appeal, dated
filed

on

Oct.

9,

2015,

after

the

expiration of the 30-day appeal period but within the excusable
neglect period.
motion

With his notice of appeal, Gilmore filed a

containing

language

that

we

liberally

request for an extension of time to appeal.

construe

as

a

Accordingly, we

remand this case to the district court for the limited purpose
of

determining

whether

Gilmore
2

has

demonstrated

excusable

Appeal: 15-7598

neglect
appeal

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or

good

period.

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cause
The

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warranting
record,

as

an

extension

supplemented,

of

the

will

30-day

then

be

returned to this court for further consideration.
REMANDED

3