Stephano Colosi, Jr. v. Gene Johnson, No. 09-6610 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6610 STEPHANO COLOSI, JR., Petitioner - Appellant, v. GENE M. JOHNSON, Corrections, Director of the Virginia Department of Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, District Judge. (2:06-cv-00033-JBF-TEM) Submitted: October 30, 2009 Decided: November 13, 2009 Before WILKINSON, MOTZ, and GREGORY, Circuit Judges. Dismissed by unpublished per curiam opinion. Stephano Colosi, Jr., Appellant Pro Se. Alice Theresa Armstrong, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Stephano Colosi, Jr. seeks to appeal the district court s orders entered on February 24, 2009, and March 20, 2009, denying his post-judgment motions in his 28 U.S.C. § 2254 (2006) action. The orders are not appealable unless a circuit justice See 28 U.S.C. or judge issues a certificate of appealability. § 2253(c)(1) (2006). issue absent a constitutional prisoner A certificate of appealability will not substantial right. satisfies reasonable jurists constitutional 28 this would claims by showing U.S.C. the the denial § 2253(c)(2) standard find of by that district any of (2006). demonstrating assessment court is a A that of debatable the or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See 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 (4th Cir. 2001). We have independently reviewed the record and conclude Colosi has not made the requisite showing. Insofar as Colosi indicates he is also appealing the April 24, 2008 order denying his motion to set aside the district court s order denying his § 2254 petition, we note the appeal is untimely. 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 2 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 was entered on the docket on April 24, 2008. On August 8, 2008, the district court reopened the appeal period and stated that out of an abundance of caution, the petitioner is ADVISED that he may appeal from the final Order denying his Rule 60(b) motion by forwarding a written notice of appeal to the Clerk within thirty days of the date of the order. Colosi did not file a notice of appeal within thirty days of the August 8, 2008 order. Rather, he filed within ten days, motions under Rules 52 and 60 of the Federal Rules of Civil Procedure. While those motions delayed the start of the appeal period from the August 8, 2008 order until the motions were disposed, the motions did not have the same effect upon the April 24, 2008 order because the motions were filed beyond the ten-day period as to that order. R. Civ. P. 4(a)(4). See Fed. Because Colosi failed to file a timely notice of appeal from the April 24, 2008 order, we do not have jurisdiction to review that order. Accordingly, and dismiss the appeal. we deny a certificate of appealability We dispense with oral argument because 3 the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 4

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