United States v. Pacheco

Fourth Circuit

United States v. Pacheco

111 F. App'x 163

CourtCourt of Appeals for the Fourth Circuit

DecidedOctober 14, 2004

Docket04-6977, 04-7268

StatusUnpublished

Cited by1 cases

This text of 111 F. App'x 163 (United States v. Pacheco) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Pacheco, 111 F. App'x 163 (4th Cir. 2004).

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Opinion

PER CURIAM.

In these consolidated appeals, Anthony Pacheco seeks to appeal the district court’s order denying his 28 U.S.C. § 2255 (2000) motion and the order denying his motion for an extension of time in which to note an appeal. We dismiss the appeal from the § 2255 motion for lack of jurisdiction because the notice of appeal was not timely filed. We also deny a certificate of appeal-ability and dismiss the appeal from the denial of the motion for an extension of time.

When the United States or its officer or agency is a party, the notice of appeal must be filed no more than sixty days after the entry of the district court’s final judgment or order, Fed. R.App. P. 4(a)(1)(B), 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 Corrs., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978).

The district court’s order dismissing Pacheco’s § 2255 motion was entered on the docket on February 3, 2004. By notice of appeal postmarked June 2, 2004, Pacheco filed a notice of appeal and motion for an extension of the appeal period. * The district court properly denied the motion for an extension of time. See Fed. R.App. P. 4(a)(5), (6). Accordingly, the June 2, 2004, *164 notice of appeal was untimely filed, and we lack jurisdiction to consider the appeal.

With respect to No. 04-6977, we dismiss the appeal. With respect to No. 04-7268, we deny a certificate of appealability and 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

*

For the purpose of this appeal, we assume that the date appearing on the postmark for 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, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).

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PER CURIAM.

In these consolidated appeals, Anthony Pacheco seeks to appeal the district court’s order denying his 28 U.S.C. § 2255 (2000) motion and the order denying his motion for an extension of time in which to note an appeal. We dismiss the appeal from the § 2255 motion for lack of jurisdiction because the notice of appeal was not timely filed. We also deny a certificate of appeal-ability and dismiss the appeal from the denial of the motion for an extension of time.

When the United States or its officer or agency is a party, the notice of appeal must be filed no more than sixty days after the entry of the district court’s final judgment or order, Fed. R.App. P. 4(a)(1)(B), 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 Corrs., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978).

The district court’s order dismissing Pacheco’s § 2255 motion was entered on the docket on February 3, 2004. By notice of appeal postmarked June 2, 2004, Pacheco filed a notice of appeal and motion for an extension of the appeal period. * The district court properly denied the motion for an extension of time. See Fed. R.App. P. 4(a)(5), (6). Accordingly, the June 2, 2004, *164 notice of appeal was untimely filed, and we lack jurisdiction to consider the appeal.

With respect to No. 04-6977, we dismiss the appeal. With respect to No. 04-7268, we deny a certificate of appealability and 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

*

For the purpose of this appeal, we assume that the date appearing on the postmark for 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, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).

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