United States v. Robinson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-7787
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID MOE ROBINSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR-
92-51-JFM, CA-01-1821-JFM)
Submitted: January 9, 2002 Decided: January 24, 2002
Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Moe Robinson, Appellant Pro Se. Andrea L. Smith, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Moe Robinson seeks to appeal the district court’s orders
denying relief on his motions filed under 28 U.S.C.A. § 2255 (West
Supp. 2001), and Fed. R. Civ. P. 60(b).1 We dismiss the appeal for
lack of jurisdiction because Robinson’s notice of appeal was not
timely filed.
In actions where the United States is a party, parties are
accorded sixty days after entry of the district court’s final judg-
ment or order to note an appeal, see 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. 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 § 2255 relief was entered
on the docket on July 9, 2001. Robinson timely moved to extend the
appeal period under Rule 4(a)(5), which the district court granted
on October 17, 2001. Robinson therefore had ten days after entry
of the order granting the extension of time in which to file his
notice of appeal—that is, until October 29, 2001.2 Despite this
1
Although styled as a motion under Fed. R. Civ. P. 59(e), the
motion actually was a motion under Fed. R. Civ. P. 60(b) because
Robinson filed it more than ten days after entry of judgment. See
Small v. Hunt, 98 F.3d 789, 797 (4th Cir. 1996).
2
The tenth day fell on Saturday, October 27, 2001, so
Robinson had until Monday, October 29 to file his notice of appeal.
2
extension, Robinson did not file his notice of appeal from the
denial of § 2255 relief until November 2, 2001. Because Robinson
failed to file a timely notice of appeal after obtaining an exten-
sion, we lack jurisdiction to review the district court’s July 9
order denying § 2255 relief.
We also lack jurisdiction to consider Robinson’s appeal of the
district court’s order denying Rule 60(b) relief. The district
court entered its order on August 14, 2001. Because Robinson failed
to obtain an extension or reopening of the sixty-day appeal period,
his notice of appeal filed on November 2, 2001, was untimely.
Accordingly, we deny Robinson’s motion for a certificate of
appealability and dismiss the appeal. We dispense with oral argu-
ment because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
DISMISSED
See Fed. R. App. P. 26(a).
3