Ronald Murray, Petitioner-appellant, v. Samuel A. Lewis, Director; John Hallahan; Arizona Attorneygeneral, Respondents-appellees, 81 F.3d 169 (9th Cir. 1996)

MEMORANDUM^** 

Ronald Murray, an Arizona state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 petition. He contends the district court erred when it denied him relief. We dismiss for lack of jurisdiction.

On February 13, 1995, the district court denied Murray's petition and entered judgment on February 14, 1995. On May 25, 1995, Murray filed a motion to file a delayed notice of appeal pursuant to Fed. R. App. P. 4(a) (5). On July 11, 1995, the district court granted Murray's motion.

A timely filed notice of appeal is mandatory and jurisdictional. Vernon v. Heckler, 811 F.2d 1274, 1276 (9th Cir. 1987). Because Murray did not file his motion within sixty days of the date judgment was entered, the district court lacked authority to permit a delayed filing of the notice of appeal. See Fed. R. App. P. 4(a) (1), (5).

Fed. R. App. P. 4(a) (6) permits a district court to reopen an appeal only if it finds that a party did not receive notice of the entry of judgment within twenty-one days of its entry. In that event, the district court may reopen the appeal upon motion filed within 180 days of entry of the judgment. See Fed. R. App. P. 4(a) (6).

In order to determine whether Murray's appeal should be reopened pursuant to Fed.R.App. 4(a) (6), we remanded to the district court for the limited purpose of determining when Murray received notice of the entry of judgment. The district court determined that there was no delay in the filing or mailing of the judgment and concluded that Murray received notice well within twenty-one days of the date judgment was entered. Murray has failed to rebut the district court's finding. Accordingly, we dismiss his appeal for lack of jurisdiction. See Fed. R. App. P. 4(a) (6); see also Vernon, 811 F.2d at 1276.

DISMISSED.