McEvily v. Johnson

                            UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).

                                    - 2 -
adequately presented in the materials before the court and argument

would not aid the decisional process.



                                                         DISMISSED




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