United States v. Michael McClain, 4th Cir. (2015)
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Scribd Government DocsUnited States v. Michael McClain, 4th Cir. (2015)
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6489
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL PRESTON MCCLAIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.
Henry M. Herlong, Jr., Senior
District Judge. (7:11-cr-00477-HMH-1; 7:14-cv-02671-HMH )
Submitted:
December 10, 2015
Decided:
December 28, 2015
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael Preston McClain, Appellant Pro Se.
Elizabeth Jean
Howard, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael
appeal
the
Preston
McClain,
district
courts
federal
order
prisoner,
granting
the
seeks
to
Governments
motion for summary judgment and dismissing his 28 U.S.C. 2255
(2012) motion to vacate.
We granted a limited remand to the
district court for further factual development on the issue of
whether
McClain
noted
timely
appeal.
United
States
v.
McClain, 612 F. Appx 679 (4th Cir. 2015) (No. 15-6489).
The
district
clear error.
courts
findings
of
fact
are
reviewed
for
Fed. R. Civ. P. 52(a)(6); see Ray v. Clements, 700
F.3d 993, 1012 (7th Cir. 2012) (applying clear error review to
district
courts
determination).
factual
A
findings
finding
is
in
prison
clearly
mailbox
erroneous
rule
when
the
reviewing court is left with the definite and firm conviction
that
Bessemer
mistake
City,
marks omitted).
has
470
been
U.S.
committed.
564,
573
Anderson
(1985)
v.
(internal
City
of
quotation
The district court concluded, based on evidence
presented by the Government and in the absence of a response by
McClain, that the notice of appeal was given to prison officials
for
mailing
on
March
31,
2015,
beyond
the
applicable
appeal
period.
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 courts final judgment or order, Fed.
2
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).
[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 courts order was entered on the docket on
January 8, 2015.
The court did not clearly err in finding that
the notice of appeal was filed on March 31, 2015.
appeal was untimely.
Thus, the
Because McClain failed to file a timely
notice of appeal or to obtain an extension or reopening of the
appeal period, we dismiss the appeal for lack of jurisdiction.
We
dispense
contentions
with
are
oral
argument
adequately
because
presented
in
the
facts
and
the
materials
legal
before
this court and argument would not aid the decisional process.
DISMISSED
