United States v. Marshall

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-7989 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus SCOTT MARSHALL, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:02-cr-00226-5; 2:05-cv-00046) Submitted: June 21, 2007 Decided: June 26, 2007 Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Scott Marshall, Appellant Pro Se. Charles T. Miller, United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Scott Marshall seeks to appeal the district court’s order adopting the magistrate judge’s recommendation and denying relief on his 28 U.S.C. § 2255 (2000) motion. 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 June 26, 2006. The notice of appeal was filed on October 30, 2006.* Because Marshall 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 * 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). - 2 - materials before the court and argument would not aid the decisional process. DISMISSED - 3 -