UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6984
CHARLES R. SMITH,
Petitioner - Appellant,
versus
STATE OF SOUTH CAROLINA; HENRY MCMASTER,
Attorney General of the State of South
Carolina,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Matthew J. Perry, Jr., Senior
District Judge. (CA-03-1623)
Submitted: August 12, 2004 Decided: August 20, 2004
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Charles R. Smith, Appellant Pro Se. Henry Dargan McMaster, Attorney
General, Donald John Zelenka, Chief Deputy Attorney General, John
William McIntosh, Assistant Attorney General, Samuel Creighton
Waters, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia,
South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles R. Smith seeks to appeal the district court’s
order accepting the report and recommendation of the magistrate
judge, awarding summary judgment to Defendants, and dismissing his
petition for a writ of 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. 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
April 23, 2004. The notice of appeal was executed on June 2,
2004.* Because Smith 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).
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materials before the court and argument would not aid the
decisional process.
DISMISSED
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