United States v. McNairy

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
April 23, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-11104
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK MCNAIRY, also known as Little D,
also known as Little Derrick,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CV-355-P
USDC No. 3:99-CR-364-ALL-P
--------------------
Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Derrick McNairy, federal inmate #33456-077, seeks a
certificate of appealability (“COA”) to appeal the denial of his
28 U.S.C. § 2255 motion. McNairy was convicted following entry
of his guilty plea to a charge of possession with intent to
distribute and distribution of cocaine base. He was sentenced to
180 months’ imprisonment and five years’ supervised release.

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No. 02-11104
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We must, if necessary, examine the basis of our jurisdiction
on our own motion. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.
1987). “The time limitation for filing a notice of appeal is
jurisdictional and lack of a timely notice mandates dismissal of
an appeal.” Robbins v. Maggio, 750 F.2d 405, 408 (5th Cir.
1985). McNairy’s notice of appeal was due within sixty days of
the entry of the judgment or order appealed. FED. R. APP.
P. 4(a)(1)(B).
By judgment entered June 11, 2001, the district court
denied McNairy’s 28 U.S.C. § 2255 motion on the merits. McNairy
filed a pro se notice of appeal bearing a handwritten date of
September 23, 2002. McNairy stated that he did not receive a
copy of the judgment that denied his 28 U.S.C. § 2255 motion and
that he received notice, via a docket sheet entry, of the denial
of his motion no earlier than August 26, 2002. He argues that he
was transferred to another institution on June 13, 2001, did not
receive the judgment, and has shown excusable neglect warranting
a re-opening of the appeal period.
Because McNairy’s notice of appeal was prepared no earlier
than September 23, 2002, it could not have been deposited in the
prison mail system within the prescribed 60-day period and was
untimely. See FED. R. APP. P. 4(c)(1). Because McNairy did not
file a motion pursuant to FED. R. APP. P. 4(a)(5) within “30
days after expiration of the original 60 days specified in
Rule 4(a)(1)(B),” FED. R. APP. P. 4(a)(5) provides no ground for

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No. 02-11104
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relief. Wilkens v. Johnson, 238 F.3d 328, 330-31 (5th Cir.
2001).
Rule 4(a)(6), FED. R. APP. P., allows the district court to
re-open the time for appeal upon a motion filed within 180 days
of the entry of judgment or within 7 days of the receipt of such
notice, whichever is earlier, provided that the district court
finds that a party was entitled to notice of the entry of
judgment and did not receive such notice within 21 days of its
entry. McNairy’s notice of appeal was not filed within the
180-day period.
“Absent the timely filing of [a FED. R. APP. P. 4(a)(6)]
motion, the court is powerless to reopen the time” for filing a
notice of appeal. Wilkens, 238 F.3d at 331. A party has “a duty
to inquire periodically into the status of [his] litigation,” and
must file a timely notice of appeal whether or not he receives
notice of the entry of an order. Latham v. Wells Fargo Bank,
N.A., 987 F.2d 1199, 1201 (5th Cir. 1993) (interpreting
FED. R. CIV. P. 77(d) and FED. R. APP. P. 4(a)).
Accordingly, the appeal is DISMISSED for lack of
jurisdiction. The COA motion is DENIED as moot.

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