UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-7322
KERRY LEE SMITH,
Petitioner - Appellant,
versus
WARDEN GARRAGHTY,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Richmond. Robert E. Payne, District Judge.
(CA-98-763-3)
Submitted: March 23, 2000 Decided: March 29, 2000
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kerry Lee Smith, Appellant Pro Se. Linwood Theodore Wells, Jr.,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kerry Lee Smith seeks to appeal the district court’s order
dismissing his petition for habeas corpus, pursuant to 28 U.S.C.A.
§ 2254 (West 1994 & Supp. 1999). We dismiss the appeal for lack of
jurisdiction because Smith’s notice of appeal was not timely filed.
Parties are accorded thirty days after entry of the district
court’s final judgment or order to note an appeal, see Fed. R. App.
P. 4(a)(1), 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). This appeal period is “mandatory and
jurisdictional.” Browder v. Director, Dep’t of Corrections, 434
U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S.
220, 229 (1960)).
The district court’s order was entered on the docket on August
27, 1999. Smith’s notice of appeal was filed on September 28,
1999.* Because Smith failed to file a timely notice of appeal or
to obtain an extension or reopening of the appeal period, we deny
a certificate of appealability and dismiss the appeal. We dispense
with oral argument because the facts and legal contentions are
*
For the purposes of this appeal we assume that the date
Smith wrote on the notice of appeal is the earliest date it would
have been submitted to prison authorities. See Houston v. Lack,
487 U.S. 266 (1988).
2
adequately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED
3