Opinion
No. 14-6712
10-15-2014
SPENCER T. MYERS, Petitioner - Appellant, v. TERRY O'BRIEN, Respondent - Appellee.
Spencer T. Myers, Appellant Pro Se.
UNPUBLISHED Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:13-cv-00022-FPS-JSK) Before MOTZ, AGEE, and THACKER, Circuit Judges. Dismissed by unpublished per curiam opinion. Spencer T. Myers, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Spencer T. Myers seeks to appeal the district court's order adopting the magistrate judge's recommendation to deny Myers' 28 U.S.C. § 2241 (2012) habeas petition and dismissing the petition with prejudice. We dismiss the appeal for lack of jurisdiction 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 sixty 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). "[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 court's order was entered on the docket on January 22, 2014. The notice of appeal was filed on April 16, 2014. Because Myers failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we deny leave to proceed in forma pauperis and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
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. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266 (1988).
DISMISSED