Powell v. US

Filing 920070302

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-6832 JAMES DEVON POWELL, Plaintiff - Appellant, versus UNITED STATES OF AMERICA, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, District Judge. (5:01-cr-00295-H) Submitted: February 7, 2007 Decided: March 2, 2007 Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges. Dismissed by unpublished per curiam opinion. James Devon Powell, Appellant Pro Se. Eric Evenson, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Devon Powell seeks to appeal the district court's order recharacterizing Powell's Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C. 2255 (2000) motion and dismissing the motion for lack of jurisdiction. We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed. In a civil case, 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). period is "mandatory and jurisdictional." This appeal 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 was entered on the docket on May 16, 2005. The notice of appeal was filed on April 21, 2006.* Because Powell 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 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 - * legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED - 3 -

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