UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7803
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EDWARD DEVON SINGLETARY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (CR-00-314; CA-03-240-1)
Submitted: October 11, 2006 Decided: November 16, 2006
Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Edward Devon Singletary, Appellant Pro Se. Robert Albert Jamison
Lang, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Edward Devon Singletary seeks to appeal the district
court’s order denying his motion filed pursuant to 28 U.S.C. § 2255
(2000). We dismiss the appeal for lack of jurisdiction because the
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)).
The district court’s order was entered on the docket on
July 29, 2003. The sixty-day appeal period expired on
September 29, 2003,* and the excusable neglect period expired on
October 29, 2003. The first time Singletary’s appeal was before us
we construed a statement in Singletary’s notice of appeal to be a
motion for an extension of time under Rule 4(a)(5) and remanded for
the district court to determine whether Singletary timely filed the
motion. See United States v. Singletary, 88 F. App’x 652 (4th Cir.
*
Because the sixtieth day fell on Saturday, September 27,
2003, Singletary had until Monday, September 29, to timely file his
notice of appeal. See Fed. R. App. P. 26(a)(3).
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2004). On remand, the magistrate judge found that Singletary
deposited his Rule 4(a)(5) motion in the prison’s legal mail box no
earlier than Friday, October 31, 2003, two days after the excusable
neglect period expired, and, thus, that the appeal period could not
be extended.
Upon further review, we remanded the case for a second
time to provide the parties time to object to the magistrate
judge’s findings and to give the district court an opportunity to
conduct the appropriate review. See United States v. Singletary,
160 F. App’x 333 (4th Cir. 2006). After reviewing Singletary’s
objections, the district court accepted the magistrate judge’s
finding that Singletary’s motion for an extension of time to appeal
under Rule 4(a)(5) was not timely filed. Our review of the record
leads us to conclude that the district court’s finding is not
clearly erroneous.
Because Singletary filed his notice of appeal after the
appeal and excusable neglect periods expired and failed to obtain
an extension or reopening of the appeal period, we dismiss the
appeal as untimely. 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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