Jones v. Angelone

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 00-6499

ROBERT R. JONES,

Petitioner - Appellant,

versus

RONALD J. ANGELONE, Director of the Virginia Department of Corrections,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Norfolk. Henry C. Morgan, Jr., District Judge. (CA-98-1201-2)

Submitted: June 15, 2000 Decided: June 23, 2000

Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Cir- cuit Judge.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

Robert R. Jones, Appellant Pro Se. Ruth M. McKeaney, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Robert R. Jones seeks to appeal the district court’s orders

denying his petition filed under 28 U.S.C.A. § 2254 (West 1994 &

Supp. 2000), and his motion for reconsideration of the same. We

affirm in part and dismiss in part.

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 (1978) (quoting United States v. Robinson, 361 U.S.

220, 229 (1960)).

The district court’s order denying Jones’ § 2254 petition was

entered on the docket on August 26, 1999.1 Jones’ notice of appeal

was filed on April 5, 2000.2 Because Jones failed to file a timely

1 Although the district court’s judgment is marked as “filed” on August 25, 1999, the district court’s record shows that it was entered on the docket sheet on August 26, 1999. Pursuant to Rules 58 and 79(a) of the Federal Rules of Civil Procedure, it is the date that the judgment or order was entered on the docket sheet that we take as the effective date of the district court’s de- cision. See Wilson v. Murray, 806 F.2d 1232, 1234-35 (4th Cir. 1986). 2 Although a timely motion for reconsideration under Fed. R. Civ. P. 59(e) would serve to toll the 30-day appeal period, Jones’ motion was not filed with the district court until January 21, 2000, well outside the 10-day period necessary for a timely Rule 59(e) motion. Accordingly, it was filed pursuant to Fed. R. Civ. P. 60(b). Such a motion does not toll the appeal period.

2 notice of appeal or to obtain an extension or reopening of the

appeal period, we deny a certificate of appealability and dismiss

the appeal from the district court’s denial of his § 2254 petition.

Addressing Jones’ motion for reconsideration, we find that the

district court did not abuse its discretion in denying this motion.

See National Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 265 (4th

Cir. 1993) (providing standard). Accordingly, we grant Jones’ mo-

tion to proceed on appeal in forma pauperis and affirm the district

court’s order denying Jones’ Rule 60(b) motion. We therefore af-

firm in part, and deny a certificate of appealability and dismiss

in part. 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 IN PART