UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-6994

MICHAEL S. GORBEY,

Petitioner - Appellant,

v.

STATE OF WEST VIRGINIA; D.C. JAIL WARDEN,

Respondents - Appellees.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Martinsburg. Gina M. Groh, 

District Judge. (3:13-cv-00169-GMG-JES)

Submitted: October 16, 2014 Decided: October 22, 2014

Before MOTZ, WYNN, and THACKER, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Michael S. Gorbey, Appellant Pro Se. 

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Michael S. Gorbey seeks to appeal the district court’s 

order dismissing his habeas action for failure to prosecute and 

denying his Fed. R. Civ. P. 60(b) motion. We dismiss the appeal

of the underlying dismissal order for lack of jurisdiction 

because the notice of appeal was not timely filed. As to the 

Rule 60(b) motion, we deny a certificate of appealability and 

dismiss the appeal.

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. Russell, 551 U.S. 205, 214 (2007).

The district court’s order was entered on the docket 

on March 14, 2014; the time for filing a notice of appeal 

expired on April 14, 2014. See Fed. R. App. P. 26(a)(1)(C). 

Thus, Gorbey’s Rule 60(b) motion, which he filed on June 12, 

2014,* could not toll the appeal period. The notice of appeal 

 * For the purpose of this appeal, we assume that the date 

appearing on Gorbey’s motion 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 

(1988).
3

was filed on June 29, 2014. Because Gorbey failed to file a 

timely notice of appeal or to obtain an extension or reopening 

of the appeal period, we dismiss Gorbey’s appeal of the district 

court’s dismissal order. 

Turning to the district court’s denial of Gorbey’s 

Rule 60(b) motion, that order is not appealable unless a circuit 

justice or judge issues a certificate of appealability. 28 

U.S.C. § 2253(c)(1)(A) (2012). 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) (2012). When the 

district court denies relief on the merits, a prisoner satisfies 

this standard by demonstrating that reasonable jurists would 

find that the district court’s assessment of the constitutional 

claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 

484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 

(2003). When the district court denies relief on procedural 

grounds, 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. Slack, 

529 U.S. at 484-85. 

We have independently reviewed the record and conclude 

that Gorbey has not made the requisite showing. Accordingly, we 

deny leave to proceed in forma pauperis, deny a certificate of 

appealability, and dismiss the appeal. We dispense with oral 
4

argument because the facts and legal contentions are adequately 

presented in the materials before this court and argument would 

not aid the decisional process.

DISMISSED