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UNITED STATES v. SUMMERVILLE (2019)

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United States Court of Appeals, Fourth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Kedrio Lekeis SUMMERVILLE, Defendant-Appellant.

No. 18-7182

Decided: May 23, 2019

Before KEENAN and RICHARDSON, Circuit Judges, and HAMILTON, Senior Circuit Judge. Kedrio Lekeis Summerville, Appellant Pro Se.

Kedrio Lekeis Summerville seeks to appeal the district court's order denying relief on his 28 U.S.C. § 2255 (2012) motion. Parties are accorded 60 days after the entry of the district court's final judgment or order to note an appeal. Fed. R. App. P. 4(a)(1)(B). The district court may, however, extend the time to file a notice of appeal if a party moves for an extension of the appeal period within 30 days after the expiration of the original appeal period and demonstrates excusable neglect or good cause to warrant an extension. Fed. R. App. P. 4(a)(5); Washington v. Bumgarner, 882 F.2d 899, 900-01 (4th Cir. 1989). “[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, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007).

The district court's order was entered on the docket on July 11, 2018. The notice of appeal was filed on September 19, 2018, a few days after the expiration of the 60-day appeal period but within the excusable neglect period. See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (establishing prisoner mailbox rule). Because Summerville's notice of appeal offered some excuse for his tardiness, we construe the notice of appeal as a timely request for an extension of time in which to file an appeal. Accordingly, we remand the case for the limited purpose of allowing the district court to determine whether the time for filing a notice of appeal should be extended under Rule 4(a)(5). The record, as supplemented, will then be returned to this court for further consideration.

REMANDED

PER CURIAM:

Remanded by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.

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