US v. McAllister

Filing 920060726

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-6284 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus SHAWN MCALLISTER, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:00-cr-00002-1; 1:03-cv-00211) Submitted: July 20, 2006 Decided: July 26, 2006 Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Shawn McAllister, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Shawn McAllister seeks to appeal the district court's orders denying relief on his 28 U.S.C. 2255 (2000) motion, and denying reconsideration. We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed. When the United States or its officer or agency is a party, the notice of appeal must be filed no more than sixty days after the entry of the district court's final judgment or order, Fed. R. App. P. 4(a)(1)(B), 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). "mandatory and jurisdictional." This appeal period is Browder v. Dir., 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 denying reconsideration was entered on the docket on December 9, 2005. was filed on February 8, 2006.* The notice of appeal Because McAllister 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 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. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266 (1988). - 2 - * presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 3 -

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