United States v. Berry ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6861
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL BERRY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CR-
00-493; CA-03-1599)
Submitted: January 31, 2007 Decided: March 5, 2007
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael Berry, Appellant Pro Se. Gregory Welsh, Angela R. White,
Assistant United States Attorneys, Lynne Ann Battaglia, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Berry seeks to appeal the district court’s order
denying his 28 U.S.C. § 2255 (2000) motion. The district court
docket sheet did not reflect that Berry filed a timely notice of
appeal. However, Berry filed a motion on January 31, 2005,
requesting that the district court apprise him of the status of his
appeal. The district court responded that a notice of appeal had
not been entered on the docket. Berry again filed a motion on
May 15, 2005, requesting that the district court apprise him of the
status of his appeal and certificate of appealability. Berry
attached a copy of a notice of appeal, which was dated “November
2004.” The district court construed this filing as a belated
notice of appeal. We remanded the case to the district court to
determine if Berry filed a timely notice of appeal and, if not,
whether his January 31, 2005 filing constituted a timely motion for
an extension of time.
The district court conducted a review of the filings
after finding that a hearing was not necessary. The court
determined that Berry’s notice of appeal was due on December 28,
2004. The court found that Berry did not file a document that
comported with the filing requirements.1 A timely motion for an
extension of time was due on January 27, 2005. See Fed. R. App.
1
Berry had filed an attachment to his May 15, 2005 motion that
purported to be a notice of appeal he sent to the court in November
2004.
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P. 4(a)(5). Berry filed a motion on January 31, 2005, to apprise
him of the status of his appeal. The district court found the
pleading was not a timely filed motion for an extension of time.
When the United States or its officer or agency is a
party, the notice of appeal must be filed no more than sixty days
after the entry of the district court’s final judgment or order.
See Fed. R. App. P. 4(a)(1)(B). This appeal period is mandatory
and jurisdictional. See Browder v. Dir., Dep’t of Corr., 434 U.S.
257, 267 (1978) (quoting United States v. Robinson, 361 U.S. 220,
229 (1960)). Since the district court entered the judgment against
Berry on October 29, 2004, he had until December 28, 2004, to file
a timely notice of appeal.
Because Berry is incarcerated, his notice of appeal is
deemed filed when it is submitted to prison officials for mailing,
in accordance with Houston v. Lack, 487 U.S. 266 (1988). To
demonstrate that he timely filed under this rule, Berry must either
submit a notarized statement setting forth the date that he
deposited the notice of appeal with prison officials or,
alternatively, submit a declaration in compliance with 28 U.S.C.
§ 1746 (2000). Fed. R. App. P. 4(c)(1).2
2
Under 28 U.S.C. § 1746(2), an inmate must execute a statement
that a timely notice of appeal was deposited in the prison mail
system in substantially the following form: “I declare (or certify,
verify, or state) under penalty of perjury that the foregoing is
true and correct. Executed on (date). (Signature).” Under Rule
4(c)(1), the inmate must comply with § 1746 or provide a notarized
statement setting forth the same general information as is required
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Berry’s statement in his notice of appeal attached as an
exhibit does not comport with the requirements of Rule 4(c)(1) and
28 U.S.C. § 1746, as it is not notarized, makes no reference to the
potential penalty for perjury, and is not specifically dated. In
addition, his January 31, 2005 filing cannot be construed as a
timely motion for an extension of time.
We therefore dismiss the appeal. 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
under § 1746.
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