Raymond Lewellyn v. North Carolina Department of C

Filing 920091117

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7177 RAYMOND JUNIOR LEWELLYN, Petitioner - Appellant, v. NORTH CAROLINA DEPARTMENT OF CORRECTIONS, Respondent - Appellee. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Wallace W. Dixon, Magistrate Judge. (1:08-cv-00788-WWD) Submitted: September 28, 2009 Decided: November 17, 2009 Before MOTZ, GREGORY, and SHEDD, Circuit Judges. Dismissed by unpublished per curiam opinion. Raymond Junior Lewellyn, DelForge, III, Assistant Carolina, for Appellee. Appellant Attorney Pro Se. General, Clarence Joe Raleigh, North Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Raymond Junior Lewellyn seeks to appeal the magistrate judge's petition order as dismissing Lewellyn's We dismiss 28 the U.S.C. appeal 2254 for (2006) lack of untimely. * jurisdiction because no notice of appeal was 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). is "mandatory and jurisdictional." Corr., 434 U.S. 257, 264 (1978) This appeal period Browder v. Dir., Dep't of (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)). The magistrate judge's memorandum and recommendation was issued on February 3, 2009. Hearing no objections, the magistrate judge entered final judgment on the docket on June 11, 2009. Lewellyn filed his untimely objection to the magistrate judge's recommendation on June 26, 2009, which the district court treated as his notice of appeal. liberally, judge's however, Lewellyn's falls objection well to Even construed the of magistrate the notice recommendation short The parties consented to the magistrate jurisdiction pursuant to 28 U.S.C. 636(c) (2006). * judge's 2 requirements of Fed. R. App. P. 3(c). No other document that could be construed as a notice of appeal was filed within the appeal period. Because Lewellyn 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 presented in the materials before the court and argument would not aid the decisional process. DISMISSED 3

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