United States v. Charles Cunningham

USCA4 Appeal: 25-6088 Doc: 7 Filed: 04/15/2025 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 25-6088 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES MUHAMMAD CUNNINGHAM, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:21-cr-00166-D-1; 5:24-cv-00180-D) Submitted: April 10, 2025 Decided: April 15, 2025 Before WILKINSON and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge. Remanded by unpublished per curiam opinion. Charles Muhammad Cunningham, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 25-6088 Doc: 7 Filed: 04/15/2025 Pg: 2 of 2 PER CURIAM: Charles Muhammad Cunningham seeks to appeal the district court’s order dismissing his 28 U.S.C. § 2255 motion. When the United States or its officer or agency is a party in a civil case, the notice of appeal must be filed no more than 60 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 entered its judgment on November 12, 2024, so the appeal period expired on January 13, 2025. See Fed. R. Civ. P. 6(a)(1)(C) (relevant counting rule). Cunningham wrote on his notice of appeal that he “[s]ubmitted” the document on January 5, 2025, but the district court did not receive the document until February 3, 2025. The envelope in which Cunningham sent the notice of appeal is not stamped with the mailing date. Accordingly, there is no evidence in the current record indicating when Cunningham mailed the notice of appeal. See Fed. R. App. P. 4(c)(1)(A); Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing prison mailbox rule). To ensure that we have jurisdiction to consider Cunningham’s appeal, we remand this case to the district court for the limited purpose of determining when Cunningham delivered his notice of appeal to prison officials for mailing to the court. The record, as supplemented, will then be returned to this court for further consideration. REMANDED 2