UN PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21
- 7159

CLARK D. THOMAS , Petitioner

- Appellant ,

v. MCKENDLEY NEWTON, Warden of Allendale Correctional Institution; ALAN M. WILSON, Attorney General of South Carolina , Respondents

- Appellees

.

Appeal from the United States District Court for the District of South Carolina , at Charleston

. Margaret B. Seymour , Senior District Judge. ( 2:19

- cv - 03179

- MBS )

Submitted : March 16, 2023 Decided: June 16, 2023

Before WYNN and RICHARDSON , Circuit Judges , and KEENAN, Senior Circuit Judge

.
Dismissed by un published per curiam opinion

. Clark D. Thomas, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-7159 Doc: 17 Filed: 06/16/2023 Pg: 1 of 42 PER CURIAM: Clark D. Thomas seeks to appeal the district court’s orders dis missing his 28 U.S.C. § 2254 petition and denying reconsideration of its order dismissing his § 2254 petition. In civil cases, parties have 30 days after the entry of the district co urt’s final 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. Russell , 551 U.S. 205, 214 (2007), and “an appeal from denial of [Fed. R. Civ. P.] 60(b) relief does not bring up the underlying judgment for review,” Aikens v. Ingram , 652 F.3d 496, 501 (4th Cir. 2011 ) (en banc) (internal quotation marks omitted). The district court’s order dismissing Thomas’ § 2254 petition was entered on March 24, 2021. The notice of appeal was filed no earlier than July 3, 2021. Thomas’ appeal from the dismissal of his petition i s untimely, he did not obtain an extension or reopening of the appeal period, and his motion for reconsideration did not extend the appeal period because it was not filed within the period for seeking relief under Fed. R. Civ. P. 52 or Fed. R. Civ. P. 59(e ). See Parker v. Bd. of Pub. Utils. , 77 F.3d 1289, 1291 (10th Cir. 1996) (holding that Fed. R. Civ. P. 59(e) time period is triggered by entry of judgment, not service of notice). Accordingly, we dismiss this portion of the appeal for lack of jurisdictio n. Thomas also seeks to appeal the district court’s order denying on the merits his motion to reconsider the court’s prior order denying relief on his § 2254 petition. Because Thomas’ motion was not filed within 28 days after the entry of the district court’s order dism issing the action, the motion is properly construed as filed pursuant to Fed. R. Civ. P. USCA4 Appeal: 21-7159 Doc: 17 Filed: 06/16/2023 Pg: 2 of 43 60(b). See Fed. R. Civ. P. 52(b), 59(e) (providing 28

- day filing period); MLC Auto., LLC v. Town of S. Pines , 532 F.3d 269, 277

- 78 (4th Cir. 2008) (explaining that po stjudgment motions should be construed based on time period within which they are filed). The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A); s ee generally United States v. McRae , 793 F.3d 392, 400 & n.7 (4th Cir. 2015). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the district court denies relief on the merits, a prisoner sati sfies this standard by demonstrating that reasonable jurists could find the district court’s assessment of the constitutional claims debatable or wrong. See Buck v. Davis , 580 U.S. 100, 115

- 17 (2017). When the district court denies relief on procedural g rounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable and that the petition states a debatable claim of the denial of a constitutional right. Gonzalez v. Thaler , 565 U.S. 134, 140

- 41 (2012) (citing Slack v. McDanie l , 529 U.S. 473, 484 (2000)). Limiting our review of the record to the issues raised in Thomas’ informal brief, we conclude that Thomas has not made the requisite showing. See 4th Cir. R. 34(b); see also Jackson v. Lightsey , 775 F.3d 170, 177 (4th Cir. 2014) (“The informal brief is an important document; under Fourth Circuit rules, our review is limited to issues preserved in that brief.”). Accordingly, we deny a certificate of appealability and dismiss the appeal. We deny Thomas’ request to appoint co unsel. We dispense with oral argument because USCA4 Appeal: 21-7159 Doc: 17 Filed: 06/16/2023 Pg: 3 of 44 the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
DISMISSED USCA4 Appeal: 21-7159 Doc: 17 Filed: 06/16/2023 Pg: 4 of 4