UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7869
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MELVIN G. STEWART,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CA-98-168-1; CA-05-581-1)
Submitted: June 28, 2006 Decided: July 18, 2006
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Melvin G. Stewart, Appellant Pro Se. Paul Joseph McNulty, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Melvin G. Stewart seeks to appeal the district court’s
order dismissing as untimely his 28 U.S.C. § 2255 (2000) motion.
We dismiss the appeal for lack of jurisdiction because a notice of
appeal was not timely filed.
When the United States or its officer or agency is a
party, the notice of appeal must be filed no more than sixty days
after the entry of the district court’s final judgment or order,
Fed. R. App. P. 4(a)(1)(B), 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 of Corr.,
434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361
U.S. 220, 229 (1960)). A prisoner’s notice of appeal is deemed
filed when submitted to prison officials for mailing in accordance
with Houston v. Lack, 487 U.S. 266 (1988). However, the prisoner
must comply with Fed. R. App. P. 4(c)(1) and 28 U.S.C. § 1746
(2000) to benefit from this mailbox rule.
The district court’s judgment was entered on the docket
on July 7, 2005. Stewart filed a letter with the district court on
November 21, 2005, inquiring about a notice of appeal filed in his
case on July 26, 2005. Stewart informed that the notice of appeal
was submitted by someone assisting him with his case. The district
court, having received nothing prior to this date in Stewart’s case
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since entry of judgment, filed the letter as a notice of appeal.
To the extent the November letter is construed as a notice of
appeal, it is clearly untimely. With respect to Stewart’s
assertion that a timely notice of appeal was filed in July 2005, we
find that remand for further factual findings under Houston v. Lack
is not warranted. Stewart failed to comply with Fed. R. App. P.
4(c)(1) and 28 U.S.C. § 1746 and does not allege that he delivered
the notice of appeal to prison officials for mailing, but rather
states that it was submitted by someone assisting him with his
case. Accordingly, we find he is not entitled to the benefit of
the mailbox rule under Houston v. Lack.
Because Stewart has 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
materials before the court and argument would not aid the
decisional process.
DISMISSED
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