Sellmon v. Compton

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-7312

TONY R. SELLMON,

Plaintiff - Appellant,

versus

B. G. COMPTON,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (03-169-jct)

Submitted: July 14, 2005 Decided: July 21, 2005

Before WILKINSON, LUTTIG, and MOTZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Tony R. Sellmon, Appellant Pro Se. Thomas Linn Eckert, Assistant United States Attorney, John Leslie Brownlee, United States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Tony R. Sellmon seeks to appeal from the district court’s

order dismissing his habeas petition challenging the United States

Parole Commission’s determination in his case. This case is back

in this court after a limited remand to determine if Sellmon had

shown excusable neglect or good cause to warrant an extension of

time for filing a notice of appeal. The district court found

Sellmon failed to make such a showing. See Sellmon v. Compton, No.

03-169-jct (W.D. Va. Apr. 19, 2005). We therefore dismiss the

appeal for lack of jurisdiction because the notice of appeal was

not timely filed.

Parties in a civil action in which the United States is

a party are accorded sixty days after the court’s entry of final

judgment or order to note an appeal, Fed. R. App. P. 4(a)(1)(B),

unless the 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 Corr., 434 U.S. 257, 264 (1978) (quoting United

States v. Robinson, 361 US. 220, 229 (1960)).

The district court’s order was entered on the docket on

May 10, 2004. The notice of appeal was filed on August 2, 2004.*

* For the purpose of this 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).

- 2 - Because Sellmon failed to file a timely notice of appeal or to

obtain an extension or reopening of the appeal period, we dismiss

the appeal. 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

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