United States v. Walters

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-5227

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TRAVIS LEVONT WALTERS,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(CR-04-726)

Submitted: March 31, 2006 Decided: April 18, 2006

Before NIEMEYER, LUTTIG, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Parks Nolan Small, Federal Public Defender, Columbia, South
Carolina, for Appellant. Rose Mary Parham, Assistant United States
Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Travis Levont Walters seeks to appeal his criminal

convictions in which final judgment was entered on May 16, 2005.

We dismiss the appeal because the notice of appeal was not timely

filed.

Under Rule 4(b)(1)(A)(I) of the Rules of Appellate

Procedure, criminal defendants have ten days from the entry of

final judgment to note an appeal. A criminal judgment is “entered”

when it is entered on the criminal docket. Rule 4(b)(6). The

district court may, “before or after the time has expired, with or

without motion and notice,” extend the appeal period upon a finding

of excusable neglect or good cause. Rule 4(b)(4). The extension,

however, is “for a period not to exceed 30 days from the expiration

of the time otherwise prescribed by this Rule 4(b).” Id.; see also

United States v. Reyes, 759 F.2d 351, 353 (4th Cir. 1985).

Compliance with Rule 4(b) is mandatory and jurisdictional. Smith

v. Barry, 502 U.S. 244, 248 (1992); United States v. Raynor, 939

F.2d 191, 197 (4th Cir. 1991).

Walters’s final judgment of conviction was entered on the

district court’s docket on May 16, 2005. Even according Walters

the benefit of Houston v. Lack, 487 U.S. 266 (1988), in determining

his filing date and accepting the date on the document construed as

a notice of appeal (November 22, 2005) as the date he relayed a

notice of appeal to prison officials for mailing, his notice of

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appeal was filed well beyond both the ten-day appeal period and the

additional thirty-day excusable neglect period. Both parties agree

in their filings that Walters’s notice of appeal is late and that

this Court therefore lacks appellate jurisdiction.*

We therefore dismiss this appeal for lack of

jurisdiction. We dispense with oral argument because the facts and

legal contentions of the parties are adequately presented in the

materials before the Court and argument would not aid the

decisional process.

DISMISSED

*
If Walters’s counsel in fact failed to timely file a notice
of appeal as he requested, Walters must seek relief in the district
court in a § 2255 action alleging ineffective assistance of counsel
on that basis within that statute’s one-year limitations period.

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