Roger J. Burke, Petitioner-appellant, v. John J. Mitchell, Hon., Sixth Judicial Circuit of Maryland,respondent- Appellee, 862 F.2d 313 (4th Cir. 1988)
Annotate this CaseRoger J. Burke, appellant pro se.
Gary Eugene Bair, Office of Attorney General of Maryland, for appellee.
Before DONALD RUSSELL, SPROUSE, and ERVIN, Circuit Judges.
PER CURIAM:
Roger Burke, a Maryland prisoner, noted this appeal outside the 30-day period established by Fed. R. App. P. 4(a) (1), and failed to move for an extension of the appeal period within the additional 30-day period provided by Fed. R. App. P. 4(a) (5).1 The time periods established by Fed.R.App. 4 are "mandatory and jurisdictional." Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)). Appellant's failure to note a timely appeal or obtain an extension of the appeal period deprives this Court of jurisdiction to consider this case. We therefore deny a certificate of probable cause to appeal and dismiss the appeal. We dispense with oral argument because the facts and legal arguments are adequately presented in the materials before the Court and oral argument would not significantly aid the decisional process.
DISMISSED.
Burke's notice of appeal contains a request for an extension of time to appeal, which we construe as a Fed. R. App. P. 4(a) (5) motion for an extension of the appeal period. The last day for filing such a motion was July 5. Because nothing in the record suggests that Burke gave his notice of appeal to prison authorities by July 5, we decline to remand for findings concerning whether Burke's filing was timely under Houston v. Lack, 56 U.S.L.W. 4728 (U.S. June 24, 1988) (No. 87-5428)
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