United States v. McLean

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 98-6462

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CLEVELAND MCLEAN, JR., a/k/a June, a/k/a Junior,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. J. Calvitt Clarke, Jr., Senior District Judge. (CR-90-105, CA-96-424)

Submitted: June 18, 1998 Decided: July 8, 1998

Before MURNAGHAN and WILKINS, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Cleveland McLean, Jr., Appellant Pro Se. Laura Marie Everhart, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Appellant 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 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 exceptions 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 May 15, 1996; Appel-

lant’s notice of appeal was filed on March 23, 1998. Appellant’s

failure to file a timely notice of appeal* or to obtain either an

extension or a reopening of the appeal period leaves this court

without jurisdiction to consider the merits of Appellant’s appeal.

We therefore deny Appellant’s motion for a certificate of appeal-

ability and dismiss the appeal. We dispense with oral argument

because the facts and legal contentions are adequately presented in

* 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 the materials before the court and argument would not aid the

decisional process.

DISMISSED