James R. Dator v. Warden Joseph McFadden

Filing

OPINION/ORDER DIRECTING LIMITED REMAND [4CCA retains jurisdiction]. Originating case number: 1:15-cv-01698-MBS Copies to all parties and the district court/agency. Mailed to: Dator. [1000044135] [16-7404]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-7404

JAMES R. DATOR,
Petitioner - Appellant,
v.
WARDEN JOSEPH MCFADDEN, Lieber Corr Inst,
Respondent - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Aiken.
Margaret B. Seymour, Senior District Judge. (1:15-cv-01698-MBS)

Submitted: March 14, 2017

Decided: March 17, 2017

Before NIEMEYER, SHEDD, and WYNN, Circuit Judges.

Remanded by unpublished per curiam opinion.

James R. Dator, Appellant Pro Se. Donald John Zelenka, Senior Assistant Attorney
General, James Anthony Mabry, Assistant Attorney General, Columbia, South Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
James R. Dator seeks to appeal the district court’s order accepting the magistrate
judge’s recommendation and denying relief on his 28 U.S.C. § 2254 (2012) petition. We
order a limited remand.
Parties are accorded 30 days after the entry of the district court’s final judgment or
order to note an appeal, Fed. R. App. P. 4(a)(1)(A), 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). When an appellant is
incarcerated, the notice of appeal is considered filed as of the date it was properly
delivered to prison officials for mailing to the court. Fed. R. App. P. 4(c)(1); Houston v.
Lack, 487 U.S. 266 (1988).
The district court’s order was entered on September 2, 2016, and Dator had until
October 3, 2016 to file a timely notice of appeal. His notice of appeal was received by
the district court on October 11, 2016, and it bore a date stamp by prison officials as
having been received for mailing on October 6, 2016. Although Dator stated that he
submitted the notice on October 3, 2016, he did not provide a declaration under penalty
of perjury or notarized statement in accordance with Fed. R. App. P. 4(c)(1). It thus
appears that the notice of appeal was filed on October 6, 2016, which would make it
untimely. However, Dator further stated that he did not receive a copy of the judgment
until September 29, 2016, arguably stating a reason for his delay and moving for an
extension or reopening of the time to appeal under Fed. R. App. P. 4(a).
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Accordingly, we remand the case to the district court for the limited purpose of
allowing the court to determine whether the notice of appeal was timely filed, whether it
should be construed as including a motion for an extension of time to file the notice, and
whether an extension or reopening of the appeal period is warranted in this case. The
record, as supplemented, will then be returned to this court for further consideration.

REMANDED

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