United States of America, Plaintiff-appellee, v. Robert Lee Johnson, A/k/a Khalid Abdul Latif, Defendant-appellant.united States of America, Plaintiff-appellee, v. Robert Lee Johnson, Defendant-appellant, 850 F.2d 690 (4th Cir. 1988)

Robert Lee Johnson appeals from the district court's denial of his motion for relief under 28 U.S.C. § 2255 and the court's subsequent denial of his Fed. R. Civ. P. 60(b) motion. We dismiss the appeal of the court's denial of relief under Sec. 2255 for lack of jurisdiction and we affirm the court's denial of relief under Rule 60(b).

Robert Lee Johnson noted his appeal of the district court's denial of his Sec. 2255 motion outside the 60-day appeal period established by Fed. R. App. P. 4(a) (1) for cases in which the United States is a party. He also failed to move for an extension of the appeal period within the additional 30-day period provided by Fed. R. App. P. 4(a) (5). The time periods established by Fed. R. App. P. 4 are "mandatory and jurisdictional." Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)). Appellant's failure to note a timely appeal or obtain an extension of the appeal period deprives this Court of jurisdiction to consider this case. See Shah v. Hutto, 722 F.2d 1167 (4th Cir. 1983) (en banc), cert. denied, 466 U.S. 975 (1984). We therefore dismiss the appeal of the district court's denial of Sec. 2255 relief.

Our review of the record indicates that the district court did not abuse its discretion in denying Johnson's Rule 60(b) motion. We therefore affirm the denial of relief under Rule 60(b). We dispense with oral argument because the facts and legal arguments are adequately presented in the materials before the Court and oral argument would not significantly aid the decisional process.

AFFIRMED IN PART; DISMISSED IN PART.