     Case: 18-10913      Document: 00515034267         Page: 1    Date Filed: 07/15/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit


                                    No. 18-10913                            FILED
                                  Summary Calendar                      July 15, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
MARION DAVID HAGER,

                                                 Petitioner-Appellant

v.

UNDERWOOD, Warden,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:18-CV-355


Before DENNIS, OWEN, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Marion David Hager, now federal prisoner # 54182-380, moves for leave
to proceed in forma pauperis on appeal and for appointment of appellate
counsel. Hager is appealing the district court’s summary dismissal for lack of
jurisdiction of his 28 U.S.C. § 2241 habeas corpus petition challenging his 72-
month sentence for possessing a firearm as a convicted felon, as well as its
denial of his Federal Rule of Civil Procedure 60(b) motion for reconsideration.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 18-10913       Document: 00515034267         Page: 2    Date Filed: 07/15/2019


                                      No. 18-10913

       We note that there is an issue regarding the timeliness of Hager’s notice
of appeal. The district court entered its final judgment on May 1, 2018. Any
notice of appeal had to be filed within 60 days. See 28 U.S.C. § 2107(b); FED.
R. APP. P. 4(a)(1)(B). Hager’s “petition to reconsider” did not extend this time
because it was filed more than 28 days after the district court issued its
judgment. See FED. R. APP. P. 4(a)(4)(A); FED. R. CIV. P. 59(d)–(e). Because the
60-day “appeal filing deadline [is] prescribed by statute,” it affects our
jurisdiction. Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 16
(2017) (citing Bowles v. Russell, 551 U.S. 205, 210–13 (2007)).
       Hager’s notice of appeal was dated July 9, 2018, and filed July 13, 2018.
It was therefore untimely. 1 But “[w]e construe [Hager’s] notice of appeal,
which asserted reasons for his untimely filing, as a motion under Federal Rule
of Appellate Procedure 4(a)(5)(A)” to extend the time to file a notice of appeal.
Kramer v. Castaneda, 599 F. App’x 174, 174 (5th Cir. 2015). We therefore
REMAND so that the district court can rule on that motion. Upon ruling, the
district court shall return the case to this Court for dismissal or further
proceedings, as may be appropriate.




       1 Hager’s notice of appeal would have been timely as to the district court’s denial of
his petition to reconsider, but we do not understand him to be appealing that order because
his opening appellate brief does not address it.


                                             2
