United States v. Adams ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-8061
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CLARENCE ANTWAINE ADAMS,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:08-cv-00573-FDW; 3:06-cr-00391-FDW-1)
Submitted: January 14, 2010 Decided: January 22, 2010
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Clarence Antwaine Adams, Appellant Pro Se. William A. Brafford,
Assistant United States Attorney, Dana Owen Washington, OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clarence Antwaine Adams seeks to appeal the district
court’s order denying relief on his 28 U.S.C.A. § 2255(West Supp. 2009) 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 to a civil action, the notice of appeal must be filed no
more than sixty days after 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)); see Bowles v. Russell, 551 U.S. 205, 214
(2007) (“[T]he timely filing of a notice of appeal in a civil
case is a jurisdictional requirement.”).
The district court’s order denying Adams’ § 2255
motion was entered on the docket on December 17, 2008. Adams’
notice of appeal was filed on November 5, 2009, * well beyond 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 district court. See Fed. R. App. P. 4(c); Houston v. Lack,
487 U.S. 266, 270-72 (1988).
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sixty-day appeal period. Further, Adams did not obtain an
extension of the appeal period, and he is not entitled to a
reopening of the appeal period, see Fed. R. App. P. 4(a)(6). We
therefore dismiss the appeal for lack of jurisdiction. We deny
Adams’ request for a certificate of appealability and 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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