Johnson v. US Parole Commission ( 2002 )


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  •                 IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 01-60984
    Summary Calendar
    KEVIN TODD JOHNSON,
    Petitioner,
    versus
    UNITED STATES PAROLE COMMISSION,
    Respondent.
    - - - - - - - - -
    Petition for Review of an Order of the
    United States Parole Commission
    - - - - - - - - - -
    October 10, 2002
    Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Kevin Johnson, transferred to the United States pursuant to
    the Treaty on the Execution of Penal Sentences (Treaty), November
    25, 1976, United StatesSSMexico, 20 U.S.T. 7399; T.I.A.S. No. 8718,
    appeals the United States Parole Commission’s determination of his
    release date and period and terms of supervised release.
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this
    opinion should not be published and is not precedent except under the limited
    circumstances set forth in 5TH CIR. R. 47.5.4.
    No. 01-60984
    -2-
    We must determine the basis of our jurisdiction.     Mosley v.
    Cozby, 
    813 F.2d 659
    , 660 (5th Cir. 1987).   The statutory time limit
    for filing a petition of review of an agency action is jurisdic-
    tional.   Nutt v. Drug Enforcement Admin., 
    916 F.2d 202
    , 203 (5th
    Cir. 1990).   Absent a tolling provision “or other saving device,”
    the court must dismiss the petition for want of jurisdiction.   
    Id. By the
    plain language of 18 U.S.C. § 4106A(b)(2)(A), the
    notice of appeal had to be filed in this court within 45 days after
    receipt of notice of the Parole Commission’s determination.   Thus,
    Johnson had until December 17, 2001, to file his notice of appeal
    in this court.   However, the notice of appeal was not filed here
    until December 27, 2001.
    Although Johnson was instructed by the clerk of this court to
    include in his brief the issue whether the notice of appeal was
    timely, he has failed to argue that we should consider the notice
    of appeal timely notwithstanding that it was not received by this
    court within the 45-day period.    We will not raise and discuss
    issues that have not been asserted on appeal.      See Brinkmann v.
    Dallas County Deputy Sheriff Abner, 
    813 F.2d 744
    , 748 (5th Cir.
    1987).
    Because Johnson has failed to provide any argument that his
    notice of appeal was timely, the appeal is DISMISSED for want of
    jurisdiction.
    APPEAL DISMISSED.
    

Document Info

Docket Number: 01-60984

Filed Date: 10/11/2002

Precedential Status: Non-Precedential

Modified Date: 12/21/2014