UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-7276
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROGER THEODORE ATWOOD, II,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Lacy H. Thornburg,
District Judge. (CR-99-44)
Submitted: December 19, 2001 Decided: January 11, 2002
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Roger Theodore Atwood, II, Appellant Pro Se. Brian Lee Whisler,
Thomas Gray Walker, OFFICE OF THE UNITED STATES ATTORNEY, Char-
lotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Roger Theodore Atwood, II, appeals the district court’s orders
dismissing his 28 U.S.C.A. § 2255 (West Supp. 2001) motion and
denying reconsideration of that order.
In an action in which the United States is a party, parties
are accorded sixty days after entry of the district court’s final
judgment or order to note an appeal, see Fed. R. App. P.
4(a)(1)(B), 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 Corr., 434 U.S. 257,
264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229
(1960)).
The district court’s order dismissing Atwood’s § 2255 motion
was entered on May 24, 2001. To be timely, Atwood would have had
to note an appeal no later than July 23, 2001. Atwood’s notice of
appeal was filed on July 26, 2001.* Atwood filed his motion to
reconsider pursuant to Fed. R. Civ. P. 60(b) more than ten days
after the entry of the district court’s order dismissing his § 2255
motion, so the time period for filing his appeal of that order was
not tolled. See Fed. R. App. P. 4(a)(4). Therefore, Atwood’s
*
For the purpose of this appeal, we assume that the dates
appearing on Atwood’s pleadings are the earliest dates they could
have been given to prison officials for mailing. See Fed. R. App.
P. 4(c); Houston v. Lack, 487 U.S. 266 (1988).
2
appeal is only timely as to the district court’s order denying his
subsequent motion for reconsideration.
This court reviews denial of a Fed. R. Civ. P. 60(b) motion
for abuse of discretion. See NOW v. Operation Rescue, 47 F.3d 667,
669 (4th Cir. 1995) (per curiam). We have reviewed the record and
conclude the district court’s order denying Atwood’s motion for
reconsideration was not an abuse of discretion.
Accordingly, we deny a certificate of appealability, dismiss
as untimely Atwood's appeal as to the denial of his § 2255 motion,
and dismiss as meritless his appeal as to the order denying recon-
sideration. 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