Johnson v. Braxton

102 F. App'x 280

Opinion

PER CURIAM:

This matter is before the court following a limited remand for a determination as to whether Tyrone L. Johnson could show excusable neglect with regard to his untimely notice of appeal. Because Johnson did not make a showing of excusable neglect, we dismiss the appeal for lack of jurisdiction.

Parties are accorded thirty days after entry of the district court’s final judgment or order to note an appeal, see Fed. R.App. P. 4(a)(1), 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 Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960)).

The district court’s order was entered on the docket on July 1, 2003. Johnson’s notice of appeal was executed on August 21, 2003. On limited remand to the district court for a determination of excusable neglect, Johnson filed a motion to withdraw and indicated he no longer wished to pursue his appeal. This does not constitute a showing a excusable neglect. Because Johnson failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we dismiss the appeal. We deny Johnson’s motion for a certificate of appealability. 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