512 F. App'x 316

Cardell Lamont AVENT, Petitioner-Appellant, v. Randall C. MATHENA, Warden, Wallens Ridge State Prison, Respondent-Appellee.

No. 12-7707.

United States Court of Appeals, Fourth Circuit.

Submitted: Feb. 20, 2013.

Decided: Feb. 28, 2013.

Cardell Lamont Avent, Appellant Pro Se. Eugene Paul Murphy, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee.

Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.

Remanded by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Cardell Lamont Avent seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2254 (2006) petition. Parties in a civil action in which the United States is not a party have thirty days following entry of a final order in which to file a notice of appeal. Fed. R.App. P. 4(a)(1)(A). These time periods are mandatory and jurisdictional. Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); see also Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (“[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement.”). However, if a party moves for an extension of time to appeal within thirty days after expiration of the original appeal period and demonstrates excusable neglect or good cause, a district court may extend the time to file a notice of appeal. Fed. R.App. P. 4(a)(5)(A); Washington v. Bumgarner, 882 F.2d 899, 900-01 (4th Cir.1989).

The district court entered judgment against Avent on August 6, 2012; Avent had until September 5, 2012, to file a timely notice of appeal. Avent filed his notice of appeal on September 6, 2012, one day late.* Avent separately filed a motion for extension of time on the same day and within the thirty-day excusable neglect period. Because this motion remains pending in the district court, we remand for the *317limited purpose of determining whether Avent has demonstrated excusable neglect or good cause warranting an extension of the thirty-day appeal period. The record, as supplemented, will then be returned to this court for further consideration.

REMANDED.

Avent v. Mathena
512 F. App'x 316

Case Details

Name
Avent v. Mathena
Decision Date
Feb 28, 2013
Citations

512 F. App'x 316

Jurisdiction
United States

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