US v. Baxter

Filing 920061024

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-7298 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ARTHUR ANTHONY BAXTER, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert E. Maxwell, Senior District Judge. (2:95-cr-00008-REM; 2:98-cv-00027-REM) Submitted: October 17, 2006 Decided: October 24, 2006 Before NIEMEYER, KING, and DUNCAN, Circuit Judges. Dismissed by unpublished per curiam opinion. Arthur Anthony Baxter, Appellant Pro Se. Rita R. Valdrini, Acting United States Attorney, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Arthur Anthony Baxter seeks to appeal the district We court's order dismissing his 28 U.S.C. 2255 (2000) motion. 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 was entered on the docket on August 14, 2001. The notice of appeal was filed on July 10, 2006.* Because Baxter 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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