UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-6867
JAMES MALLARD, a/k/a F. Brown,
Petitioner - Appellant,
versus
FRED MENIFEE,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Raleigh. James C. Fox, District Judge.
(CA-98-675-5-HC)
Submitted: March 28, 2000 Decided: May 1, 2000
Before MURNAGHAN and WILLIAMS, Circuit Judges, and BUTZNER, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
James Mallard, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Mallard seeks to appeal the district court’s order dis-
missing his 28 U.S.C.A. § 2254 (West 1994 & Supp. 1999) petition.
We dismiss the appeal for lack of jurisdiction because Mallard’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(b)(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
September 15, 1998. Mallard’s notice of appeal was filed on May
13, 1999, and he failed to obtain an extension or reopening of the
appeal period. On September 21, 1999, this court remanded
Mallard’s case for a determination of whether his notice of appeal
was timely under Houston v. Lack, 487 U.S. 266, 276 (1988). On
October 29, 1999, acting on this court’s direction, the district
court directed Mallard to submit, within fifteen days of his
receipt of the order, a statement made under penalty of perjury
providing evidence as to the date of filing. Mallard did not re-
spond to this order. Given this failure to come forward with evi-
2
dence sufficient to demonstrate a timely filing under Houston, the
district court found Mallard’s notice of appeal untimely. Finding
no error in this determination, we deny a certificate of appeal-
ability, deny Mallard’s motion for appointment of counsel, and dis-
miss the appeal. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
DISMISSED
3