US v. Winston Poyer
UNPUBLISHED PER CURIAM OPINION filed. Originating case numbers: 3:04-cr-00162-FDW-1, 3:12-cv-00323-FDW. Copies to all parties and the district court. . Mailed to: Appellant. [16-6063]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
WINSTON DARIN POYER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:04-cr-00162-FDW-1; 3:12-cv-00323-FDW)
March 29, 2016
April 1, 2016
Before GREGORY and DUNCAN, Circuit Judges, and DAVIS, Senior
Dismissed by unpublished per curiam opinion.
Winston Darin Poyer, Appellant Pro Se.
Steven R. Kaufman,
Assistant United States Attorney, Charlotte, North Carolina; Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Winston Darin Poyer seeks to appeal the district court’s
order denying his 28 U.S.C. § 2255 (2012) motion.
the appeal for lack of jurisdiction because the notice of appeal
was not timely filed.
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.
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).
filing of a notice of appeal in a civil case is a jurisdictional
Bowles v. Russell, 551 U.S. 205, 214 (2007).
The district court’s order was entered on the docket on
April 21, 2015.
The notice of appeal was filed on January 12,
Because Poyer failed to file a timely notice of appeal or
to obtain an extension or reopening 2 of the appeal period, we
The notice of appeal is considered filed the day Poyer
delivered it to prison officials for mailing to the court. Fed.
R. App. P. 4(c); Houston v. Lack, 487 U.S. 266 (1988).
In his notice of appeal, Poyer stated that he did not
receive notice of the denial of relief in a timely manner, see
Fed. R. App. P. 4(a)(6)(A), and he sought leave to proceed with
However, he filed the notice of appeal requesting
additional time, at the earliest, on January 12, 2016—266 days
after the court entered the dismissal order.
See Fed. R. App.
P. 4(a)(6)(B) (requiring that motion to reopen be “filed within
dismiss the appeal.
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We dispense with oral argument because the
180 days after the judgment or order is entered or within 14
days after the moving party receives notice under Federal Rule
of Civil Procedure 77(d) of the entry, whichever is earlier”);
Baker v. United States, 670 F.3d 447, 456 (3d Cir. 2012)
(holding that district court had no authority to reopen appeal
period when motion was filed beyond 180-day limit); Hensley v.
Chesapeake & Ohio Ry., 651 F.2d 226, 228 (4th Cir. 1981) (noting
expiration of time limits in Rule 4 deprives court of
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