Phillip Wendell Taylor v. Thomas R. Israel, Warden, Attorney General of the State of Virginia , 885 F.2d 866 ( 1989 )

885 F.2d 866
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Phillip Wendell TAYLOR, Petitioner-Appellant,
v.
Thomas R. ISRAEL, Warden, Attorney General of the State of
Virginia, Respondents-Appellees.

No. 89-7606.

United States Court of Appeals, Fourth Circuit.

Submitted Aug. 3, 1989.
Decided Sept. 11, 1989.

Phillip Wendell Taylor, appellant pro se.

Before CHAPMAN and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

1

Phillip Wendell Taylor seeks to appeal the district court's dismissal of his 28 U.S.C. Sec. 2254 action for failure to exhaust state remedies. We deny a certificate of probable cause to appeal and dismiss the appeal for lack of jurisdiction.

2

The district court dismissed this action on December 19, 1988. On April 7, 1989, Taylor filed an informal brief in another appeal in which he referenced the district court's order dismissing this petition for failure to exhaust state remedies. We need not reach the question whether Taylor's reference to the district court's order in this case may be considered adequate to notify the court and the parties that an appeal was being taken in this action, see Cobb v. Lewis, 488 F.2d 41, 45 (5th Cir.1974) (document is valid notice of appeal if it notifies court and parties that appeal is being taken), because Taylor's appeal is, in any event, untimely.

3

Under Fed.R.App.P. 4(a)(1), Taylor was required to note his appeal within 30 days of the district court's December 19, 1988, judgment. He failed to do this, and he failed to file a timely motion to extend the appeal period as permitted by Fed.R.App.P. 4(a)(5). Absent a timely appeal, we are without jurisdiction to review this case.

4

We accordingly dismiss the appeal as untimely. Taylor is, of course, free to refile his habeas action and establish that he has now exhausted state remedies. We dispense with oral argument because the dispositive issues have been decided authoritatively.

5

DISMISSED.