Montford v. Curran

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
THOMAS E. MONTFORD, 
Petitioner-Appellant,
v.
 No. 03-6066
J. JOSEPH CURRAN, JR., Maryland
State Attorney General,
Respondent-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-02-3359-MJG)
Submitted: February 26, 2003
Decided: March 26, 2003
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Thomas E. Montford, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 MONTFORD v. CURRAN
OPINION
PER CURIAM:
Thomas E. Montford seeks to appeal the district court’s orders
denying as successive his petition filed under 28 U.S.C. § 2254(2000), and denying his motion for reconsideration.1 We deny a certif-
icate of appealability and dismiss the appeal.
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 denying Montford’s § 2254 petition was
filed on October 24, 2002, and entered on the docket on October 25,
2002. The notice of appeal was filed on December 2, 2002.2 Because
Montford failed to file a timely notice of appeal or to obtain an exten-
sion or reopening of the appeal period, we dismiss this portion of the
appeal for lack of jurisdiction.
Turning to Montford’s appeal of the district court’s order denying
relief on his motion for reconsideration, we find that the filing the dis-
trict court construed as a motion for reconsideration would be more
appropriately construed as a third § 2254 petition. So construed, we
find no reversible error in the district court’s denial of relief given that
the court lacked jurisdiction to entertain a third § 2254 petition with-
1
Although Montford did not file a notice of appeal from the district
court’s order denying his motion for reconsideration, we have jurisdic-
tion over the appeal because his timely filed informal brief is the func-
tional equivalent of a notice of appeal. Smith v. Barry, 502 U.S. 244, 245
(1992).
2
For purposes of this portion of the appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could have been
properly delivered to prison officials for mailing to the court. See Fed.
R. App. P. 4(c); Houston v. Lack, 487 U.S. 266 (1988).
MONTFORD v. CURRAN 3
out authorization from this court to do so. Accordingly, we dismiss
this portion of the appeal on that basis.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED