UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7358
MICHAEL MCEVILY,
Petitioner - Appellant,
versus
GENE JOHNSON,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., District
Judge. (CA-03-10-2)
Submitted: February 12, 2004 Decided: February 20, 2004
Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael McEvily, Appellant Pro Se. Stephen R. McCullough, Assistant
Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael McEvily seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
dismissing as untimely his petition for habeas corpus filed
pursuant to 28 U.S.C. § 2254 (2000). We dismiss the appeal for
lack of jurisdiction because the notice of appeal was not timely
filed.
Parties are accorded thirty days after the entry of the
district court’s final judgment or order to note an appeal, Fed. R.
App. P. 4(a)(1)(A), 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. Dir., 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
July 30, 2003. The notice of appeal was filed on September 2,
2003.* Because McEvily 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
*
Because McEvily was released from imprisonment on June 4,
2003, he does not benefit from the “prison mailbox rule” regarding
the filing date of his notice of appeal. See Fed. R. App. P. 4(c);
Houston v. Lack, 487 U.S. 266 (1988).
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adequately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED
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