UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7410
BENJAMIN A. GIBBS,
Petitioner - Appellant,
versus
STATE OF SOUTH CAROLINA; HENRY MCMASTER,
Attorney General of South Carolina,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (CA-03-2631-08)
Submitted: February 25, 2005 Decided: March 17, 2005
Before NIEMEYER and LUTTIG, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Benjamin A. Gibbs, Appellant Pro Se. Donald John Zelenka, Chief
Deputy Attorney General, John William McIntosh, Assistant Attorney
General, William Edgar Salter, III, 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Unpublished opinions are not binding precedent in this circuit.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:
Benjamin A. Gibbs seeks to appeal the district court’s
order granting summary judgment to respondents on his 28 U.S.C.
§ 2254 (2000) petition. 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 judgment denying § 2254 relief was
entered on the docket on July 1, 2004. The notice of appeal was
filed on August 23, 2004. See Houston v. Lack, 487 U.S. 266
(1988). Because Gibbs failed to file a timely notice of appeal or
to obtain an extension or reopening of the appeal period, we
dismiss the appeal. Gibbs’ motion to proceed on appeal in forma
pauperis is denied. 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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