United States v. Blakely ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6163
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LORI D. BLAKELY,
Defendant - Appellant.
No. 05-6110
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LORI D. BLAKELY,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-00-927; CA-02-4185-2-18)
Submitted: May 18, 2005 Decided: August 11, 2005
Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Lori D. Blakely, Appellant Pro Se. Michael Rhett DeHart, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Lori D. Blakely seeks to appeal the district court’s
order dismissing her 28 U.S.C. § 2255 (2000) motion (No. 04-6163),
and the district court’s order denying her motion to reopen the
time for appeal under Fed. R. App. P. 4(a)(6) (No. 05-6110). We
dismiss appeal No. 04-6163 for lack of jurisdiction because the
notice of appeal was not timely filed, and affirm the court’s order
in appeal No. 05-6110.
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,
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. Director, 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 dismissing Blakely’s § 2255
motion was entered on the docket on August 20, 2003. The notice of
appeal was filed on January 12, 2004. We previously remanded to
the district court with instructions to construe Blakely’s motion
for an extension of time under Fed. R. App. P. 4(a)(5), filed on
December 15, 2003, as a motion to reopen under Fed. R. App. P.
4(a)(6). Because the record revealed that Blakely was notified by
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the clerk of court on November 19, 2003, that her § 2255 motion had
been dismissed and because she failed to timely file the motion to
reopen within seven days thereafter, as required by Fed. R. App. P.
4(a)(6)(A), the district court concluded that Blakely failed to
timely invoke the protection of the Rule. Accordingly, the
district court denied the motion to reopen the appeal period.
Because our review of the uncontested facts confirms these
findings, we also find that Blakely failed to timely seek the
benefit of Rule 4(a)(6). Thus, because Blakely failed to file a
timely notice of appeal or to properly obtain an extension or
reopening of the appeal period, we deny a certificate of
appealability and dismiss appeal No. 04-6163 as untimely. We deny
Blakely’s pending motions for “Intervention,” to file supplemental
briefs, to “Compel the District Court to Respond to the Remand,” to
place the case in abeyance, and for a writ of mandamus. Because
the district court properly denied Blakely’s motion to reopen the
appeal period, we affirm the order that is the subject of appeal
No. 05-6110. 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.
AFFIRMED IN PART;
DISMISSED PART
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