Miller v. Painter , 117 F. App'x 261 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7341
GEORGE MILLER,
Petitioner - Appellant,
versus
HOWARD PAINTER, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (CA-99-135)
Submitted: December 16, 2004 Decided: December 22, 2004
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
George Miller, Appellant Pro Se. Dawn Ellen Warfield, OFFICE OF THE
ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
PER CURIAM:
Based on his informal brief, it appears that George Miller,
a state inmate, seeks to appeal the state trial court’s October 26,
1998, order denying post-conviction relief. We dismiss for lack of
jurisdiction. See 28 U.S.C. §§ 1291-96 (2000). To the extent that
Miller seeks to appeal the district court’s order denying his 28
U.S.C. § 2254 (2000) petition, we dismiss the appeal for lack of
jurisdiction because the notice of appeal was not timely filed.
Parties are accorded thirty days after the entry of the
district court’s final judgment or order to note an appeal, Fed. R.
App. P. 4(a)(1)(A), 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)).
The district court’s order was entered on the docket on
April 17, 2003. The notice of appeal was filed, at the earliest, on
August 18, 2004. Because Miller failed to file a timely notice of
appeal or to obtain an extension or reopening of the appeal period,
we 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
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