UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7066
EARL THOMAS, III,
Plaintiff - Appellant,
versus
CAPTAIN CROSBY; LIEUTENANT GENEAU,
Defendants - Appellees,
and
RICHMOND CITY JAIL; SHERIFF MITCHELL; MAJOR
MINION; LIEUTENANT MCCRAY; LIEUTENANT HALL;
ANY AND ALL OTHER DEPUTIES ALSO INVOLVED,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Chief
District Judge. (CA-02-1685-1)
Submitted: May 23, 2005 Decided: June 15, 2005
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Earl Thomas, III, Appellant Pro Se. John Adrian Gibney, Jr.,
THOMPSON & MCMULLAN, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Earl Thomas, III, seeks to appeal from the district
court’s order denying relief in his action filed pursuant to 42
U.S.C. § 1983 (2000). Because Thomas’ notice of appeal and request
to reopen the appeal period was received in the district court
after the expiration of the appeal period, we remanded the case to
the district court for a determination of the timeliness of the
request to reopen the appeal period under Fed. R. App. P. 4(a)(6)*
and Houston v. Lack, 487 U.S. 266 (1988) (notice considered filed
as of the date Appellant delivers it to prison officials for
forwarding to the court).
On remand, the district court found that Thomas’ motion
to reopen was not timely filed. Thus, the district court had no
authority to reopen the appeal period. Accordingly, we dismiss
this 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
*
Rule 4(a)(6) allows the district court to reopen the appeal
period if a party did not receive notice of the judgment or order
and that party files a motion to reopen within 180 days after entry
of the judgment or within seven days of receiving notice of the
entry, “whichever is earlier.”
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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
March 16, 2004. The notice of appeal was filed on June 21, 2004.
Because Thomas failed to file a timely notice of appeal or to
obtain an extension or reopening of the appeal period, we deny his
motion to reopen his case and dismiss this appeal as untimely. His
motion to reserve argument on issues is denied as moot. 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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