Marlo Charles v. Burl Cain, Warden

Filing 511158424

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Marlo Charles v. Burl Cain, Warden Doc. 511158424 Case: 09-30923 Document: 00511158424 Page: 1 Date Filed: 06/29/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-30923 S u m m a r y Calendar June 29, 2010 Lyle W. Cayce Clerk M A R L O CHARLES, P e titio n e r-A p p e lla n t v. B U R L CAIN, WARDEN, LOUISIANA STATE PENITENTIARY, R e s p o n d e n t -A p p e lle e A p p e a l from the United States District Court fo r the Eastern District of Louisiana U S D C No. 2:06-CV-8108 B e fo r e JOLLY, WIENER, and ELROD, Circuit Judges. P E R CURIAM:* P e t itio n e r -A p p e lla n t Marlo Charles, Louisiana prisoner # 112939, appeals p r o se from the denial of his 28 U.S.C. 2254 application challenging his c o n v ic t io n for aggravated rape. He has also moved for leave to file a reply brief o u t of time. We have a duty to examine the basis of its jurisdiction, sua sponte, if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A timely notice o f appeal is a jurisdictional requirement in a civil case. Bowles v. Russell, 551 U .S . 205, 213-14 (2007). As 2254 actions are civil in nature, Charles's notice Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 09-30923 Document: 00511158424 Page: 2 No. 09-30923 Date Filed: 06/29/2010 o f appeal had to be filed within 30 days following the entry of the district court's ju d g m e n t dismissing his 2254 application. See 28 U.S.C. 2107(a); Archer v. L y n a u g h , 821 F.2d 1094, 1096 (5th Cir. 1987); see also FED. R. APP. P. 4(a)(1)(A). A lt h o u g h Charles's notice of appeal was marked as filed by the district c o u r t 11 days after it was due, it would be timely if the prison mailbox rule were a p p lic a b le , given that Charles mailed it before the expiration of the limitations p e r io d for filing his notice of appeal. See Houston v. Lack, 487 U.S. 266, 276 (1 9 8 8 ); Rule 4(c)(1). The prison mailbox rule does not apply to Charles's notice o f appeal, however, as it was delivered to prison authorities for forwarding to the L o u is ia n a Second Circuit Court of Appeal, as reflected in the address on the e n v e lo p e that contained the notice of appeal. See Houston, 487 U.S. 272-73 (" [D ]e liv e r y of a notice of appeal to prison authorities would not under any t h e o r y constitute a `filing' unless the notice were delivered for forwarding to the d i s t r ic t court."); see also Dison v. Whitley, 20 F.3d 185, 186-87 (5th Cir. 1994); T h o m p s o n v. Raspberry, 993 F.2d 513, 515 (5th Cir. 1993). Similarly, Charles's m o t io n to proceed in forma pauperis (IFP) also was mailed by Charles before the e x p ir a t io n of the time period for appealing but was addressed and mailed to the L o u is ia n a Second Circuit Court of Appeal. C h a r le s did not move for an extension of time to file a notice of appeal with u s , and none of his filings contained any assertion of good cause or excusable n e g le c t for filing a late notice of appeal. The district court's orders granting C h a r le s a certificate of appealability and leave to proceed IFP contained no s t a t e m e n t regarding the timeliness of his notice of appeal or any mention of good c a u s e or excusable neglect for Charles's late filing of his notice of appeal. As C h a r le s 's notice of appeal was untimely, his appeal is dismissed for lack of ju r is d ic t io n . See Bowles, 551 U.S. at 213-14; see also Mann v. Lynaugh, 840 F.2d 1 1 9 4 , 1198-1199 & n.4 (5th Cir. 1988). A P P E A L DISMISSED; MOTION DENIED. 2

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