Johnson v. Braxton , 102 F. App'x 280 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7330
TYRONE L. JOHNSON,
Petitioner - Appellant,
versus
D. A. BRAXTON, Warden for the Red Onion State
Prison,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. David G. Lowe, Magistrate
Judge. (CA-02-930)
Submitted: June 10, 2004 Decided: June 16, 2004
Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Tyrone L. Johnson, Appellant Pro Se. Donald Eldridge Jeffrey, III,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This matter is before the court following a limited
remand for a determination as to whether Tyrone L. Johnson could
show excusable neglect with regard to his untimely notice of
appeal. Because Johnson did not make a showing of excusable
neglect, we dismiss the appeal for lack of jurisdiction.
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(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 (1978) (quoting United States v.
Robinson, 361 U.S. 220, 229 (1960)).
The district court’s order was entered on the docket on
July 1, 2003. Johnson’s notice of appeal was executed on
August 21, 2003. On limited remand to the district court for a
determination of excusable neglect, Johnson filed a motion to
withdraw and indicated he no longer wished to pursue his appeal.
This does not constitute a showing a excusable neglect. Because
Johnson failed to file a timely notice of appeal or to obtain an
extension or reopening of the appeal period, we dismiss the appeal.
We deny Johnson’s motion for a certificate of appealability. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED
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