Smith v. Commonwealth of Virginia

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-6179

DEREK D. SMITH,

Petitioner - Appellant,

versus

COMMONWEALTH OF VIRGINIA,

Respondent - Appellee.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, Chief District
Judge. (CA-01-849-07)

Submitted: June 18, 2004 Decided: July 16, 2004

Before LUTTIG, MOTZ, and SHEDD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Derek D. Smith, Appellant Pro Se. Virginia Bidwell Theisen, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Derek D. Smith seeks to appeal the district court’s order

dismissing as untimely his petition filed under 28 U.S.C. § 2254

(2000). We dismiss the appeal in part for lack of jurisdiction

because his notice of appeal filed January 6, 2004, 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.

Civ. 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. 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

sheet on November 20, 2002. The notice of appeal was filed on

January 6, 2004.* As Smith failed to file a timely notice of

appeal or obtain an extension or reopening of the appeal period, we

dismiss in part for lack of jurisdiction with respect to this

notice of appeal.

Our review of the record, however, disclosed an earlier

*
For the purpose of this appeal, we assume that the date
appearing on Smith’s appeal materials 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).

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document entitled “Notice of Appeal” that the district court

mistakenly construed as a motion to reconsider. That notice of

appeal was filed on December 2, 2002, and is thus timely as to the

November 20, 2002, order. We thus address that appeal.

An appeal may not be taken from the final order in a

§ 2254 proceeding unless a circuit justice or judge issues a

certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A

certificate of appealability will not issue absent “a substantial

showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2) (2000). A prisoner satisfies this standard by

demonstrating that reasonable jurists would find that his

constitutional claims are debatable and that any dispositive

procedural rulings by the district court are also debatable or

wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);

Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d

676, 683 (4th Cir. 2001).

We have independently reviewed the record and conclude

that Smith has not made the requisite showing. Accordingly, we

deny a certificate of appealability and dismiss 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

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