Opinion
No. 10-7488.
Submitted: March 31, 2011.
Decided: April 6, 2011.
Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:08-cv-01590-TLW).
Terence Terell Bryan, Appellant Pro Se. Erin Mary Farrell, Daniel Roy Settana, Jr., McKay, Cauthen, Settana Stubley, PA, Columbia, South Carolina; Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellees.
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
Terence Terell Bryan seeks to appeal the district court's order adopting the magistrate judge's report and recommendation and granting the South Carolina Department of Corrections' motion for summary judgment on his 28 U.S.C. § 2254 (2006) petition. We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed.
Parties are accorded thirty days after the entry of the district court's final judgment or order to note an appeal, Fed.R.App.P. 4(a)(1)(A), 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. Rtissell, 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 March 16, 2009. The notice of appeal was filed on October 20, 2010. Because Bryan failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we dismiss the appeal. Accordingly, we deny Bryan's motions for a certificate of appealability and to appoint counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the 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, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).
DISMISSED.