Jesse Thomas Horton, Plaintiff-appellant, v. Harry L. Allsbrook; Attorney General of the State of Northcarolina, Defendants-appellees, 806 F.2d 257 (4th Cir. 1986)

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US Court of Appeals for the Fourth Circuit - 806 F.2d 257 (4th Cir. 1986)

Submitted Oct. 24, 1986. Decided Dec. 4, 1986

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. (C/A No. 85-1512-HC)

Jesse Thomas Horton, appellant pro se.

Richard N. League, Office of the Attorney General, for appellees.



Before WIDENER, CHAPMAN and WILKINS, Circuit Judges.


Jesse Thomas Horton, a North Carolina inmate, appeals the district court's dismissal of his action brought under 28 U.S.C. § 2254. We dismiss for lack of jurisdiction.

The district court entered judgment on July 7, 1986. Horton filed a notice of appeal on August 13, 1986. The date of filing was thirty-seven days after the July 7, 1986 judgment. Horton did not move for an extension of time to file his appeal due to "excusable neglect," as provided by Fed. R. App. P. 4(a) (5).

Notice of appeal in a civil suit is required to be filed within thirty days of the entry of judgment. Fed. R. App. P. 4(a) (1). "This 30-day time limit is 'mandatory and jurisdictional.' " Browder v. Director, Dept. of Corrections, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)).

Horton's notice of appeal filed on August 13, 1986, did not fall within the thirty-day time limit imposed by Fed. R. App. P. 4(a). Horton did not file a motion for extension of time, nor did he acknowledge the tardiness of his appeal in any manner which could be construed as a motion for an extension of time. Accordingly, this Court is without jurisdiction to hear the appeal. Shah v. Hutto, 722 F.2d 1167, 1168 (4th Cir. 1983) (en banc), cert. denied, 466 U.S. 975 (1984).

Because the dispositive issues recently have been decided authoritatively, we deny a certificate of probable cause to appeal, dispense with oral argument and dismiss the appeal.