                                                               NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                       No. 10-3908
                                       ___________

                             UNITED STATES OF AMERICA

                                             v.

                                   LEONARD PAULK,
                                           Appellant
                          ____________________________________

                      On Appeal from the United States District Court
                               for the District of New Jersey
                        (D.C. Civil Action No. 3-03-cr-00228-002)
                       District Judge: Honorable Freda L. Wolfson
                       ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   November 1, 2011

               Before: JORDAN, HARDIMAN and ROTH, Circuit Judges

                              (Opinion filed: December 5, 2011)
                                        ___________

                                        OPINION
                                       ___________

PER CURIAM

       Leonard Paulk appeals from an order of the United States District Court for the

District of New Jersey. For the reasons that follow, we will dismiss the appeal for lack of

appellate jurisdiction.
                                             1
                                              I.

       In 2005, following a jury trial, Paulk was convicted in the District Court of one

count of conspiracy to distribute narcotics, in violation of 21 U.S.C. § 846, and one count

of distribution of crack cocaine, in violation of 21 U.S.C. § 841(a) and 21 U.S.C. § 2. He

was sentenced to life imprisonment and we affirmed his conviction. See United States v.

Paulk, 298 F. App’x 206 (3d Cir. 2008). Soon thereafter, Paulk began to file a series of

post-judgment documents in the District Court in his criminal case, and began sending

various materials to the prosecuting Assistant United States Attorney (AUSA).

       In March 2010, the Government moved to strike Paulk’s post-judgment filings and

restrict his ability to make future filings with the Court. The Government argued that

Paulk’s filings were designed to harass and threaten the District Judge, the prosecutor,

and other government personnel. Following a show cause hearing on the motion, the

District Court determined that Paulk’s filings with the Court and mailings to the AUSA

were of a vexatious and harassing nature and issued an injunctive order, pursuant to

28 U.S.C. § 1651, barring Paulk from filing any document or pleading with the court as a

pro se litigant, unless he first seeks and receives permission to file via procedures set

forth by the court. The District Court also ordered that all of Paulk’s post-judgment

filings be stricken from the record.




                                              2
       The order was entered on June 22, 2010 and, on September 20, 2010, Paulk filed a

notice of appeal. 1 Subsequent to his appeal, on October 8, 2010, Paulk filed a motion in

the District Court to reopen the time for appeal pursuant to Rule 4(a)(6) of the Federal

Rules of Appellate Procedure. In his motion, Paulk stated that he did not receive a copy

of the District Court’s order until September 14, 2010. 2 The District Court granted the

motion. Paulk now seeks review of the District Court’s June 22, 2010 order enjoining

him from filing further pro se pleadings without permission from the Court. The

Government argues that we lack jurisdiction over the appeal because Paulk filed an

untimely notice of appeal.

                                             II.

       We cannot reach the merits of an appeal unless we have appellate jurisdiction.

See Poole v. Family Court of New Castle Cnty., 368 F.3d 263, 264 (3d Cir. 2004).

       Paulk argues that because the District Court granted his request to reopen the time

to appeal pursuant to Rule 4(a)(6), his notice of appeal is timely and we have jurisdiction

over the appeal. Implicit in Paulk’s argument is that this is a civil case. Id. at 266 (Rule

4(a)(6) has no applicability to criminal cases). Paulk’s argument is supported by the

District Court’s treatment of the case as civil matter, despite its having been filed on


1
 In Houston v. Lack, 487 U.S. 266, 276 (1988), the Supreme Court held that a pro se
prisoner’s notice of appeal is deemed filed at the moment when he or she delivers it to
prison authorities for forwarding to the court clerk.
2
 Paulk’s claim is supported by the District Court record, which reflects that on July 13,
2010, the order sent to Paulk was returned to the court as undeliverable.
                                             3
Paulk’s criminal docket. See, United States v. Lavin, 942 F.2d 177, 181-82 (3d Cir

1991).

         On appeal, the Government argues the notice of appeal was untimely filed and that

we lack jurisdiction over the appeal pursuant to Rule 4(a)(1)(B) of the Federal Rules of

Appellate Procedure. Upon review, we agree with the Government that, we lack

jurisdiction to consider the appeal because Paulk did not file a timely notice of appeal.

         Paulk filed his notice of appeal beyond the time prescribed under Rule 4(a)(1)(B).

Under Rule 4(a)(1)(B), a party has sixty days to appeal from a judgment in a case in

which “the United States or its officer or agency is a party.” Id. The time limit for filing

a notice of appeal under that rule is a jurisdictional requirement. See Bowles v. Russell,

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

         The District Court’s order was entered on June 22, 2010, and Paulk deposited his

notice of appeal in his prison’s internal mail system on September 20, 2010, beyond the

60-day period prescribed under Rule 4(a)(1)(B). Paulk argues, however, that he did not

receive notice of the entry of the District Court’s order until September 14, 2010. As

mentioned, subsequent to his filing a notice of appeal, Paulk filed in the District Court a

motion to reopen pursuant to Rule 4(a)(6), arguing that the time period for filing an

appeal should be reopened because he did not receive a copy of the District Court’s order

until several months after it had been entered.

         Under Rule 4(a)(6), the District Court is empowered to reopen the time to appeal

for a 14 day period if the court finds that: (A) the moving party did not receive notice of
                                              4
the entry of judgment within 21 days after entry; (B) the motion is filed within 180 days

after entry of the judgment, or within 14 days after proper notice of entry of judgment,

whichever is earlier; and (C) no party would be prejudiced. See Fed. R. App. P. 4(a)(6).

       The District Court granted Paulk’s Rule 4(a)(6) motion, finding that the motion

was timely filed and that Paulk had demonstrated “good cause” for reopening the time to

appeal. The record demonstrates, however, that Paulk filed his motion beyond the 14-day

time limit prescribed in Rule 4(a)(6)(B). Paulk received a copy of the order on

September 14, 2010, but did not place a copy of his motion to reopen into the prison mail

system until more than 20 days later, on October 8, 2010.

       For purposes of determining the filing date of the motion to reopen, the District

Court appears to have relied on the date that Paulk filed his notice of appeal, rather than

the date that he filed his Rule 4(a)(6) motion. Indeed, Paulk filed his notice of appeal

within 14 days of receiving notice of entry of the District Court’s June 22, 2010 order.

However, we have previously determined that a notice of appeal may not be treated as a

motion to reopen under Rule 4(a)(6). See Poole, 368 F.3d at 268.

       Because Paulk’s 4(a)(6) motion was untimely, the appeal must be dismissed

notwithstanding the District Court’s order granting the motion. As we stated earlier, the

time limit for filing a notice of appeal under Rule 4(a)(1)(B) is a jurisdictional

requirement. Bowles, 551 U.S. at 214. In Bowles, the Supreme Court further explained

that the requirements of Rule 4(a)(6) are jurisdictional because they derive from federal

statute. Id. at 213 (citing 28 U.S.C. § 2107(c)). Here, because the requirement of Rule
                                              5
4(a)(6) is statutory and Paulk failed to file his notice of appeal “in accordance with the

statute,” id., the appeal must be dismissed for lack of jurisdiction.

         Accordingly, we will dismiss Paulk’s appeal for lack of appellate jurisdiction. The

Government’s motion to dismiss and for summary action is dismissed as moot. 3




3
    Appellant’s outstanding motions are also dismissed as moot.
                                              6
