Kay v. Angelone ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-7313
JAMES PRESTON KAY,
Petitioner - Appellant,
versus
RON ANGELONE, Director of the Virginia Depart-
ment of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior
District Judge. (CA-99-605-AM)
Submitted: November 20, 2000 Decided: December 4, 2000
Before WILKINS and KING, Circuit Judges, and HAMILTON, Senior Cir-
cuit Judge.
Dismissed by unpublished per curiam opinion.
James Preston Kay, Appellant Pro Se. Thomas Drummond Bagwell, As-
sistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Preston Kay seeks to appeal the district court’s order
dismissing his habeas corpus petition filed pursuant to 28 U.S.C.A.
§ 2254 (West 1994 & Supp. 2000). We dismiss the appeal for lack of
jurisdiction because Kay’s notice of appeal was not timely filed.
Parties are accorded thirty days after entry of the district
court’s final judgment or order to note an appeal. Fed. R. App. P.
4(a)(1). There are three circumstances under which the deadline to
note an appeal may be extended beyond thirty days from entry of
judgment: 1) when the district court extends the appeal period
under Fed. R. App. Proc. 4(a)(5); 2) when the district court re-
opens the appeal period under Fed. R. App. P. 4(a)(6); or 3) when
a party timely files any of the motions listed in Fed. R. App. P.
4(a)(4)(A). These strict time limitations placed on notices of
appeal 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)).
The district court’s order was entered on the docket on July
16, 1999. Although Kay’s first notice of appeal was filed on July
23, 1999, and was therefore timely, he voluntarily dismissed that
appeal on October 26, 1999, pursuant to Fed. R. App. P. 42(b). Kay
filed an Amended Notice of Appeal on September 7, 2000, approxi-
mately one year and two months after entry of judgment by the dis-
trict court and approximately eleven months after voluntarily dis-
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missing his first appeal. Kay did not obtain an extension or
reopening of the appeal period prior to filing his amended notice
of appeal. Nor did he timely file any of the motions listed in
Fed. R. App. P. 4(a)(4)(A). Accordingly, because Kay failed to
file a notice of appeal within the appeal period, his appeal was
not timely. Consequently, we deny a certificate of appealability
and 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 oral argument would not aid the
decisional process.
DISMISSED
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