Rehearing granted, May 26, 2004
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7657
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERNEST BAILEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(CR-00-152-MJG; CA-02-4025-MJG)
Submitted: January 15, 2004 Decided: January 28, 2004
Before WIDENER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Ernest Bailey, Appellant Pro Se. A. David Copperhite, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ernest Bailey seeks to appeal the district court’s order
denying relief on his motion to vacate, set aside or correct
sentence under 28 U.S.C. § 2255 (2000). We dismiss the appeal for
lack of jurisdiction because the notice of appeal was not timely
filed.
When the United States or its officer or agency is a
party, the notice of appeal must be filed no more than sixty days
after the entry of the district court’s final judgment or order,
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 was entered on the docket on
August 1, 2003. The notice of appeal was filed on October 9,
2003.* Because Bailey failed to file a timely notice of appeal or
to obtain an extension or reopening of the appeal period, we
dismiss the appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
*
For the purpose of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could
have been properly delivered to prison officials for mailing to the
court. See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266
(1988).
- 2 -
materials before the court and argument would not aid the
decisional process.
DISMISSED
- 3 -