US v. Kevin Slade

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:08-cr-00003-FL-1,4:13-cv-00132-FL Copies to all parties and the district court/agency. [1000016653]. Mailed to: Kevin Myell Slade. [16-7370]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-7370

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN MYELL SLADE,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:08-cr-00003-FL-1; 4:13-cv-00132-FL)

Submitted:

January 31, 2017

Decided:

February 3, 2017

Before WILKINSON, KEENAN, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Kevin Myell Slade, Appellant Pro Se. Shailika S. Kotiya, Joshua
Bryan Royster, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kevin

Myell

Slade

seeks

to

appeal

the

district

court’s

order adopting the recommendation of the magistrate judge and
denying

relief

We dismiss

the

on

his

appeal

28

for

U.S.C.

lack

of

§ 2255

(2012)

jurisdiction

motion.

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).

“Lack of notice of

the entry does not affect the time for appeal or relieve-or
authorize the court to relieve-a party for failing to appeal
within the time allowed, except as allowed by Federal Rule of
Appellate Procedure (4)(a).”

Fed. R. Civ. P. 77(d)(2).

Rule 4(a)(6) of the Federal Rules of Appellate Procedure
permits the reopening of the appeal period if a party has not
received notice of the judgment or order within 21 days after
entry,

but

the

motion

requesting

such

relief

must

be

filed

within 180 days after entry of the judgment or 14 days after the
party received notice of the judgment or order, whichever is
earlier.

Fed. R. App. P. 4(a)(6).

2

The time requirements of

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Rule 4(a) are mandatory and jurisdictional.

Bowles v. Russell,

551 U.S. 205, 208–14 (2007).
The district court’s order was entered on the docket on
July 15, 2016.
2016. *

Slade’s notice of appeal was filed on October 5,

In the notice of appeal, Slade claims that he received

the district court’s order on September 9, 2016.

The 14-day

period under Rule 4(a)(6), however, expired before Slade filed
his notice of appeal.
of

the

appeal

period.

Thus, Slade is not eligible for reopening
See

Nunley

v.

City

of

Los

Angeles,

52 F.3d 792, 794–95 (9th Cir. 1995); Hensley v. Chesapeake &
Ohio Ry. Co., 651 F.2d 226, 228 (4th Cir. 1981).
Accordingly, because Slade failed to file a timely notice
of appeal or to obtain an extension of the appeal period and is
not eligible for reopening of the appeal period, we dismiss the
appeal.
legal
before

We dispense with oral argument because the facts and

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
DISMISSED

*

For the purpose of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could
have been properly delivered to prison officials for mailing to
the court. See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S.
266, 276 (1988).

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