UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7264
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PATRICK LAMAR HARRIS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (4:94-cr-00297-CWH-6; 4:07-cv-70075-CWH)
Submitted: September 24, 2009 Decided: October 8, 2009
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Patrick Lamar Harris, Appellant Pro Se. Marshall Prince, II,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patrick Lamar Harris appealed from the denial of his
28 U.S.C.A. § 2255 (West Supp. 2009) motion and his motion for
reconsideration. The order denying the motion for
reconsideration was entered on March 24, 2008, rendering
Harris’s notice of appeal due by May 23. See Fed. R. App. P.
4(a)(1)(B) (according sixty days to appeal). Harris’s notice of
appeal was dated May 20, postmarked June 19, and filed June 24.
We previously remanded to the district court for a determination
of the date Harris gave his notice of appeal to prison
authorities.
On remand, the district court incorrectly held that
Harris’s notice of appeal was due ten days after the district
court’s March 24 order. See Rule 11 of the Rules Governing
Section 2255 Proceedings (stating that Fed. R. App. P. 4(a)
governs time to appeal). As such, the court found that, even
accepting Harris’s assertion that he filed his notice of appeal
on May 20, his appeal was untimely. However, because the
documents submitted by Harris on remand conclusively demonstrate
that his appeal was untimely, even under the correct appeal
period, we dismiss the appeal.
Federal Rule of Appellate Procedure 4(c)(1) states
that an incarcerated inmate’s notice of appeal is deemed filed
when deposited into the institution’s mail system. However, the
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Rule further notes that “[i]f an institution has a system
designed for legal mail, the inmate must use the system to
receive the benefit of this rule.”
In accordance with Rule 4(a), Harris’s notice of
appeal was due on May 23. His notice of appeal was ostensibly
signed on May 20. However, the notice was not filed until
June 24, over a month later. The documents submitted with
Harris’s response in the district court show that his prison has
a legal mail system, through which legal mail is logged, and
that Harris did not use the system. Harris affirmatively stated
that he “deposited the ‘Notice of Appeal’ in the prison mail
box” rather than “hand[ing it] to the mailroom staff” which
would have ensured that it was “logged in the legal mail box log
book.” Thus, we conclude that Harris is not entitled to the
protections of the mailbox rule and that his notice of appeal
was, therefore, untimely filed on June 24.
Given that this time period for appeal is “mandatory
and jurisdictional,” Browder v. Dir., Dep’t of Corr., 434 U.S.
257, 264 (1978), we dismiss the appeal for lack of jurisdiction.
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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