Baity v. NC Attorney General ( 1999 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 99-6772
    AARON W. BAITY,
    Petitioner - Appellant,
    versus
    NORTH CAROLINA ATTORNEY    GENERAL;   STATE   OF
    NORTH CAROLINA,
    Respondents - Appellees.
    Appeal from the United States District Court for the Middle Dis-
    trict of North Carolina, at Durham. Paul Trevor Sharp, Magistrate
    Judge. (CA-98-1045-1)
    Submitted:   October 21, 1999             Decided:   October 27, 1999
    Before WIDENER and TRAXLER, Circuit Judges, and BUTZNER, Senior
    Circuit Judge.
    Dismissed by unpublished per curiam opinion.
    Aaron W. Baity, Appellant Pro Se.   Clarence Joe DelForge, III,
    OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North
    Carolina, for Appellees.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Aaron W. Baity seeks to appeal the magistrate judge’s1 orders
    denying his 
    28 U.S.C.A. § 2254
     (West 1994 & Supp. 1999) petition
    and his Fed. R. Civ. P. 60(b) motion for reconsideration.     As an
    initial matter, we dismiss the appeal of Baity’s § 2254 petition
    for lack of jurisdiction because Baity’s notice of appeal was not
    timely filed.
    Parties are accorded thirty days after entry of the district
    court’s final judgment or order to note an appeal, see Fed. R. App.
    P. 4(b)(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 (1978) (quoting United States v. Robinson, 
    361 U.S. 220
    , 229 (1960)).
    The district court’s order was entered on the docket on April
    14, 1999.   Baity’s notice of appeal was filed on May 29.2   Because
    Baity failed to file a timely notice of appeal or to obtain an ex-
    tension or reopening of the appeal period, we deny a certificate of
    appealability and dismiss the appeal.
    1
    The parties consented to the jurisdiction of the magistrate
    judge pursuant to 
    28 U.S.C. § 636
     (1994).
    2
    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 given to prison officials for mailing. See Fed R. App.
    P. 4(c); Houston v. Lack, 
    487 U.S. 266
     (1988).
    2
    Regarding Baity’s appeal from the denial of his motion for
    reconsideration, we have reviewed the record and the magistrate
    judge’s opinion and find no reversible error. Accordingly, we deny
    a certificate of appealability and dismiss on the reasoning of the
    magistrate judge.   See Baity v. North Carolina Attorney Gen., No.
    CA-98-1045-1 (M.D.N.C. Apr. 14 & May 20, 1999).3   We dispense with
    oral argument because the facts and legal contentions are adequate-
    ly presented in the materials before the court and argument would
    not aid the decisional process.
    DISMISSED
    3
    Although the district court’s order is marked as “filed” on
    April 13, 1999, the district court’s records show that it was
    entered on the docket sheet on April 14, 1999. Pursuant to Rules
    58 and 79(a) of the Federal Rules of Civil Procedure, it is the
    date that the order was physically entered on the docket sheet that
    we take as the effective date of the district court’s decision.
    Wilson v. Murray, 
    806 F.2d 1232
    , 1234-35 (4th Cir. 1986).
    3