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 1988-06

Robert W. Young v. Warden, Maryland Penitentiary , 850 F.2d 691 ( 1988 )


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  • 850 F.2d 691
    Unpublished Disposition

    NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
    Robert W. YOUNG, Petitioner-Appellant,
    v.
    WARDEN, MARYLAND PENITENTIARY, Respondent-Appellee.

    No. 88-6513.

    United States Court of Appeals, Fourth Circuit.

    Submitted: April 26, 1988.
    Decided: June 23, 1988.

    Robert W. Young, appellant pro se.

    John Joseph Curran, Jr., Attorney General, Mary Ellen Barbera, Assistant Attorney General (Office of the Attorney General of Maryland), for appellees.

    Before WIDENER and JAMES DICKSON PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

    PER CURIAM:

    1

    Robert W. Young appeals the dismissal of his 28 U.S.C. Sec. 2254 petition for federal habeas corpus relief. He noted this appeal outside the 30-day appeal period and the district court granted his motion for an extension of time to appeal. We dismiss the appeal for lack of jurisdiction.

    2

    The time periods established by Fed.R.App.P. 4 are "mandatory and jurisdictional." Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)). Under Fed.R.App. 4(a)(5), a district court may not grant a motion for an extension of time to appeal if it was filed more than thirty days after the period for noting a timely appeal has ended. Hensley v. Chesapeake & Ohio Ry. Co., 651 F.2d 226 (4th Cir.1981). Young's motion for an extension of time was not filed within the time allowed by Fed.R.App.P. 4(a)(5). His failure to note a timely appeal or to file a timely motion for an extension deprives this Court of jurisdiction to consider this case. See Shah v. Hutto, 722 F.2d 1167 (4th Cir.1983) (en banc), cert. denied, 466 U.S. 975 (1984). We therefore deny a certificate of probable cause and dismiss the appeal. We dispense with oral argument because the facts and legal arguments are adequately presented in the materials before the Court and oral argument would not significantly aid the decisional process.

    3

    DISMISSED.