Wright v. Conroy

78 F. App'x 869

Opinion

PER CURIAM:

John Andrew Wright, Jr., seeks to appeal the district court’s order denying Wright’s petition filed pursuant to 28 U.S.C. § 2254 (2000). We dismiss the appeal for lack of jurisdiction because Wright’s notice of appeal was not timely filed.

Parties are accorded thirty days after the entry of the district court’s final judgment or order to note an appeal, see Fed. R.App. P. 4(a)(1), 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 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)).

The district court’s order was entered on the docket on December 9, 2003. Although the district court granted two thirty-day extensions, the court was without jurisdiction to extend the appeal period beyond the times provided in Fed. R.App. P. 4(a)(5). Wright’s notice of appeal was filed on March 20, 2003, * beyond the excusable neglect period for which the district court could properly grant an extension. See Fed. R.App. P. 4(a)(5)(C). Because Wright failed to file a timely notice of appeal, we dismiss the appeal. Moreover, because we lack jurisdiction over Wright’s appeal, we decline to grant a certificate of appeal ability. We also deny Wright’s motion for appointment of counsel. 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 purposes of this appeal, we assume that the date appearing on 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).