Joseph Grate v. Gene Johnson

Filing 920080916

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-6771

JOSEPH MICHAEL GRATE, Petitioner - Appellant, v. GENE M. JOHNSON, Director of the Virginia Department of Corrections, Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:07-cv-00020-JBF-FBS)

Submitted:

September 11, 2008

Decided:

September 16, 2008

Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Joseph Michael Grate, Appellant Pro Se. James Robert Bryden, II, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Joseph Michael Grate seeks to appeal the district court's order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2000) petition. 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). and jurisdictional." This appeal period is "mandatory

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 October 18, 2007. 2008.* The notice of appeal was filed on April 17,

Because Grate failed to file a timely notice of appeal or

to obtain an extension or reopening of the appeal period, we dismiss the appeal. facts and legal We dispense with oral argument because the are adequately presented in the

contentions

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

*

materials

before

the

court

and

argument

would

not

aid

the

decisional process. DISMISSED

3