UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6052
HEZEKIAH BERNARD DRAYTON,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Plaintiff - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (CA-03-3554)
Submitted: March 10, 2005 Decided: March 15, 2005
Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Hezekiah Bernard Drayton, Appellant Pro Se. William Kenneth
Witherspoon, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Hezekiah B. Drayton appeals from the district court’s
order denying his second motion for leave to file a petition for a
certificate of appealability out of time. The district court
previously denied relief on Drayton’s motion filed under 28 U.S.C.
§ 2255 (2000) and granted Drayton’s first motion for a thirty-day
extension in which to note an appeal or request a certificate of
appealability.
The time in which to note an appeal is mandatory and
jurisdictional. See Browder v. Dir., Dep’t of Corr., 434 U.S. 257,
264 (1978) (stating the appeal periods established by Rule 4 are
mandatory and jurisdictional). Drayton had sixty days in which to
note an appeal from the district court’s order entered on May 12,
2004, and the court granted an extension of an additional thirty
days. See Fed. R. App. P. 4(a)(1)(B). Drayton did not note an
appeal or request a certificate of appealability within that time
period.* Moreover, his second request for an extension of time in
November 2004 was made outside the time permitted under Fed. R.
App. P. 4(a)(5)(A). Accordingly, the district court did not err in
denying Drayton an additional extension, and we affirm the district
court’s order. Drayton v. United States, CA-03-3554 (D.S.C. Dec.
2, 2004). We dispense with oral argument because the facts and
*
To the extent that Drayton seeks to appeal the district
court’s May 12, 2004 order, his notice of appeal is untimely.
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legal materials are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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