US v. Hinton

Filing 920090220

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-7607

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. GREGORY HINTON, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:00-cr-0180-GBL)

Submitted:

February 2, 2009

Decided:

February 20, 2009

Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Gregory Hinton, Appellant Pro Se. OF THE UNITED STATES ATTORNEY, Appellee.

Dabney P. Langhorne, OFFICE Alexandria, Virginia, for

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Gregory Hinton seeks to appeal several orders entered by the district court. He first seeks to appeal the district

court's order granting his motion to reopen the time period for filing an appeal of the denial of his second Fed. R. Civ. P. 60(b) motion for reconsideration of the court's order denying relief motion. on his 28 U.S.C.A. § 2255 (West 2000 & Supp. 2008)

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). appeal period is "mandatory and jurisdictional." This

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 Hinton's second

Rule 60(b) motion was entered on the docket on September 19, 2006. The court reopened the appeal period for fourteen days in Hinton's notice of appeal was Because Hinton failed to

an order entered on May 4, 2007. not filed until October 2,

2007.

properly file a timely notice of appeal after he obtained a 2

reopening of the appeal period, we deny leave to proceed in forma pauperis and dismiss his appeal of the underlying

September 19, 2006 order and subsequent May 4, 2007 order. Hinton also seeks to appeal the district court's order entered August 23, 2007, denying his third Fed. R. Civ. P. 60(b) motion for reconsideration of the order denying relief on his § 2255 motion. justice or judge The order is not appealable unless a circuit issues a certificate of appealability. 28

U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). A certificate of appealability will not issue

absent "a substantial showing of the denial of a constitutional right." this 28 U.S.C. § 2253(c)(2) (2006). by demonstrating that A prisoner satisfies jurists would

standard

reasonable

find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 record (4th and Cir. 2001). that We have independently not made reviewed the the

conclude

Hinton

has

requisite

showing. order

Accordingly, as to the appeal of the district court's August 23, 2007, we deny a certificate of

entered

appealability and dismiss the appeal.

3

We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. DISMISSED

4