Smith v. South Carolina , 106 F. App'x 868 ( 2004 )


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  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 04-6984
    CHARLES R. SMITH,
    Petitioner - Appellant,
    versus
    STATE OF SOUTH CAROLINA;        HENRY   MCMASTER,
    Attorney General of the         State   of South
    Carolina,
    Respondents - Appellees.
    Appeal from the United States District Court for the District of
    South Carolina, at Charleston.    Matthew J. Perry, Jr., Senior
    District Judge. (CA-03-1623)
    Submitted:   August 12, 2004                 Decided:   August 20, 2004
    Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
    Dismissed by unpublished per curiam opinion.
    Charles R. Smith, Appellant Pro Se. Henry Dargan McMaster, Attorney
    General, Donald John Zelenka, Chief Deputy Attorney General, John
    William McIntosh, Assistant Attorney General, Samuel Creighton
    Waters, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia,
    South Carolina, for Appellees.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Charles R. Smith seeks to appeal the district court’s
    order accepting the report and recommendation of the magistrate
    judge, awarding summary judgment to Defendants, and dismissing his
    petition for a writ of habeas corpus filed pursuant to 
    28 U.S.C. § 2254
     (2000).          We dismiss the appeal for lack of jurisdiction
    because the 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, Fed. R.
    App. P. 4(a)(1)(A), 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 Corr., 
    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 23, 2004.          The notice of appeal was executed on June 2,
    2004.*   Because Smith failed to file a timely notice of appeal or
    to obtain an extension or reopening of the appeal period, we
    dismiss the appeal.         We dispense with oral argument because the
    facts    and    legal    contentions   are     adequately   presented   in   the
    *
    For the purpose 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
    (1988).
    - 2 -
    materials   before   the   court   and     argument   would   not    aid   the
    decisional process.
    DISMISSED
    - 3 -
    

Document Info

Docket Number: 04-6984

Citation Numbers: 106 F. App'x 868

Judges: Niemeyer, Per Curiam, Traxler, Williams

Filed Date: 8/20/2004

Precedential Status: Non-Precedential

Modified Date: 8/6/2023