Powell v. United States

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-6832



JAMES DEVON POWELL,

                                            Plaintiff - Appellant,

          versus


UNITED STATES OF AMERICA,

                                               Defendant - Appellee.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Malcolm J. Howard,
District Judge. (5:01-cr-00295-H)


Submitted:   February 7, 2007              Decided:   March 2, 2007


Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.


Dismissed by unpublished per curiam opinion.


James Devon Powell, Appellant Pro Se. Eric Evenson, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          James Devon Powell seeks to appeal the district court’s

order recharacterizing Powell’s Fed. R. Civ. P. 60(b) motion as a

successive 28 U.S.C. § 2255 (2000) motion and dismissing the motion

for lack of jurisdiction.     We dismiss the appeal for lack of

jurisdiction because the notice of appeal was not timely filed.

          In a civil case, 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

May 16, 2005.   The notice of appeal was filed on April 21, 2006.*

Because Powell 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




     *
      For the purpose of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could
have been properly delivered to prison officials for mailing to the
court. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266 (1988).


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legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                        DISMISSED




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