Matthews v. Johnson , 114 F. App'x 105 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7580
DANIEL M. MATTHEWS,
Petitioner - Appellant,
versus
GENE JOHNSON, Director,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. David G. Lowe, Magistrate
Judge. (CA-03-612-3)
Submitted: November 15, 2004 Decided: November 30, 2004
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Daniel M. Matthews, Appellant Pro Se. Philip Carlton Hollowell,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Daniel M. Matthews seeks to appeal the magistrate judge’s
order dismissing his 28 U.S.C. § 2254 petition, which the court
construed as a 42 U.S.C. § 1983 action, for failure to comply with
a court order.1 We dismiss the appeal for lack of jurisdiction
because the notice of appeal was not timely filed.
Parties are accorded thirty days after the court’s entry
of final judgment or order to note an appeal, Fed. R. App. P.
4(a)(1)(A), unless the 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. Director, Dep’t of Corr., 434 U.S. 257, 264 (1978)
(quoting United States v. Robinson, 361 U.S. 220, 229 (1960)).
The magistrate judge’s order was entered on the docket on
March 30, 2004. The notice of appeal was filed on September 10,
2004.2 Because Matthews failed to file a timely notice of appeal
or to obtain an extension or reopening of the appeal period, we
deny leave to file in forma pauperis and dismiss the appeal. We
deny Matthews’ motion for a certificate of appealability. We
1
The parties consented to jurisdiction of the magistrate judge
under 28 U.S.C. § 636(c) (2000).
2
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. See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266(1988).
- 2 -
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
- 3 -