Jerome H. Hinton, Plaintiff-appellant, v. Howard N. Lyles, Warden, Attorney General of the State Ofmaryland, Stephen H. Sachs, Defendants-appellees., 836 F.2d 546 (4th Cir. 1987)

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US Court of Appeals for the Fourth Circuit - 836 F.2d 546 (4th Cir. 1987) Submitted Oct. 26, 1987. Decided Dec. 14, 1987

Jerome H. Hinton, appellant pro se.

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


Jerome H. Hinton seeks to appeal from the district court's dismissal of his habeas petition without prejudice. The district court dismissed Hinton's petition after receiving from him a letter requesting the court to defer ruling on his habeas petition while he further exhausted his state remedies. Hinton subsequently decided that he had adequately exhausted his state remedies and appealed the district court's order dismissing his petition.

The district court dismissed the action on June 16, 1986, and Hinton's notice of appeal was not filed until July 18, 1986. The notice was not filed within thirty days of entry of judgment as required by Fed. R. App. P. 4(a) (1), nor did Hinton move for an extension of the appeal period within the time allowed by Fed. R. App. P. 4(a) (5). The appeal period established by Rule 4 is mandatory and jurisdictional. Shah v. Hutto, 722 F.2d 1167, 1167 (4th Cir. 1983) (en banc) (citing Browder v. Director, Dep't of Corrections, 434 U.S. 257 (1978)), cert. denied, 466 U.S. 975 (1984). Moreover, under Shah, we cannot treat Hinton's bare notice of appeal as a motion to extend the appeal period. As Hinton has failed to note his appeal within the time allowed by Rule 4, we are without jurisdiction to consider it. We note, however, that the district court's order is without prejudice to Hinton's right to refile his habeas petition should he choose to do so.

Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument, deny a certificate of probable cause to appeal, and dismiss the appeal for lack of jurisdiction. Hinton's motion for appointment of counsel is denied.