United States v. Wilkerson

109 F. App'x 517

Opinion

PER CURIAM:

John Albert Wilkerson, Jr., moves for a certificate of appealability. We deny the motion and dismiss the appeal for lack of jurisdiction because Wilkerson has not filed a timely notice of appeal. 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. Dir., Dep’t of Corr., 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)).

The district court’s order denying Wilkerson’s § 2255 motion was entered August 19, 2002. Wilkerson’s next filing was a letter dated April 7, 2004. 1 Construing the letter as a notice of appeal, it is clearly untimely. In a May 7, 2004, order responding to the April 7 letter, the district court instructed Wilkerson to file in this court a motion for a certificate of appealability and implicitly denied Wilkerson’s request in his April 7 letter to give him permission to appeal. Wilkerson adhered to the court’s instruction and filed the petition in this court on May 31, 2004. Construing this filing as a notice of appeal from the August 19, 2002, order, it is also untimely.

Accordingly, we dismiss the appeal for lack of jurisdiction and deny as moot the petition for a certificate of appealability. 2

DISMISSED

1 . For the purpose of this appeal, we assume the date appearing in the letter 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).

2 . Construing the petition for a certificate of appealability as a notice of appeal from the May 7 order is also without merit. The district court’s implicit denial of permission to file a notice of appeal is without error. See Fed. R.App. P. 4(a)(5), (6).