United States v. Blakely

97 F. App'x 453

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 28, 2004
• Docket: 04-6163
• Status: Unpublished

Opinion

PER CURIAM:

Lori D. Blakely seeks to appeal the dismissal of her 28 U.S.C. § 2255 (2000) motion entered on August 20, 2003. Blakely, however, did not file her notice of appeal until January 12, 2004, * which is outside the sixty day appeal period under Fed. R.App. P. 4(a)(1)(B). Blakely’s “Motion to Extend Time to File Out>-of-Time Appeal” was filed on December 15, 2003, beyond the thirty-day period allowed under Fed. R.App. P. 4(a)(5). Thus, the district court’s order granting the motion could not extend the appeal period. Shah v. Hutto, 722 F.2d 1167, 1168 (4th Cir.1983). The 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)).

Blakely’s pro se motion to extend and notice of appeal, in which she alleged that she did not timely receive notice of her action being dismissed, may be properly construed as a motion to reopen the time to note an appeal under Fed. R.App. P. 4(a)(6). United States v. Feuver, 236 F.3d 725, 729 & n. 7 (D.C.Cir.2001). Accordingly, we remand the case to the district court for it to determine whether Blakely can satisfy the requirements of Fed. R.App. P. 4(a)(6). Ogden v. San Juan County, 32 F.3d 452, 454 (10th Cir.1994). We express no opinion as to whether Blakely has met the requirements of Rule 4(a)(6). The record, as supplemented, will then be returned to this court for further consideration.

REMANDED

* This court has given Blakely the benefit of Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), regarding the filing dates of her documents.