United States v. Frazier

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 17, 1998
• Docket: 97-7368
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 97-7368

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DARRYL FRAZIER, a/k/a Kenneth Edmonds,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Solomon Blatt, Jr., Senior District Judge. (CR-94-681, CA-96-2164-2)

Submitted: July 2, 1998 Decided: July 17, 1998

Before NIEMEYER and HAMILTON, Circuit Judges, and HALL, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Darryl Frazier, Appellant Pro Se. Bruce Howe Hendricks, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Appellant appeals from the district court’s orders dismissing

his action filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998)

and denying his motion to reconsider. Regarding the dismissal of

his § 2255 motion, Appellant has filed an untimely notice of

appeal. We dismiss the appeal for lack of jurisdiction. The time

periods for filing notices of appeal are governed by Fed. R. App.

P. 4. These periods are “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)). Parties to

civil actions have sixty days, if the United States is a party,

within which to file in the district court notices of appeal from

judgments or final orders. Fed. R. App. P. 4(a)(1). The only excep-

tions to the appeal period are when the district court extends the

time to appeal under Fed. R. App. P. 4(a)(5) or reopens the appeal

period under Fed. R. App. P. 4(a)(6).

The district court entered its order on April 1, 1997; Appel-

lant’s notice of appeal was filed on September 19, 1997. Appel-

lant’s failure to file a timely notice of appeal* or to obtain

either an extension or a reopening of the appeal period leaves this

* For the purposes of this appeal we assume that the date Appellant wrote on the notice of appeal is the earliest date it would have been submitted to prison authorities. See Houston v. Lack, 487 U.S. 266 (1988).

2 court without jurisdiction to consider the merits of Appellant’s

appeal.

Regarding the district court’s order denying Appellant’s

motion to reconsider, we find that Appellant failed to establish

grounds meriting such relief. See Fed. R. Civ. P. 60(b). We there-

fore deny a certificate of appealability and dismiss the appeal of

both orders. 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