Larry Raines, Plaintiff-appellant, v. D. Gulmatico; A. Royster, Defendants-appellees, 806 F.2d 258 (4th Cir. 1986)

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US Court of Appeals for the Fourth Circuit - 806 F.2d 258 (4th Cir. 1986) Submitted Sept. 30, 1986. Decided Nov. 28, 1986

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. David G. Lowe, United States Magistrate. (C/A No. 86-119-R)

Larry Raines, appellant pro se.

Mary Moffett Hutcheson Priddy, McGuire, Woods & Battle; Robert Harkness Herring, Office of the Attorney General, for appellees.

E.D. Va.


Before RUSSELL and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.


Larry Raines, a Virginia inmate, seeks to appeal the judgment of the district court dismissing his civil action brought pursuant to 42 U.S.C. § 1983. The district court entered final judgment in this case on June 18, 1986. Raines noted his appeal on July 21, 1986, thirty-three days after entry of judgment and three days later than the period prescribed by Fed. R. App. P. 4(a) (1).

Under Fed. R. App. P. 4(a) (1), an appeal must be noted within thirty days after the entry of judgment. Under Fed. R. App. P. 4(a) (5), a district court, "upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than thirty days after the expiration [of the appeal period]." Absent a request for extension of the appeal period, a notice of appeal filed in this second thirty-day period is untimely and ineffective to confer appellate jurisdiction. Shah v. Hutto, 722 F.2d 1167 (4th Cir. 1983) (en banc), cert. denied, 466 U.S. 975 (1984). Therefore this Court lacks jurisdiction to hear Raines' appeal.

Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument and dismiss this case for lack of jurisdiction.