Bernard Johnson, Petitioner-appellant, v. Edward W. Murray, Director of the Virginia Department Ofcorrections, Respondent-appellee, 872 F.2d 417 (4th Cir. 1989)Annotate this Case
Bernard Johnson, appellant pro se.
Richard Bain Smith, Office of the Attorney General of Virginia, for appellee.
Before DONALD RUSSELL and PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Bernard Johnson, a state prisoner, submitted his notice of appeal to prison authorities outside the 30-day appeal period established by Fed. R. App. P. 4(a) (1).* It was therefore untimely. See Houston v. Lack, 56 U.S.L.W. 4728 (U.S. June 24, 1988) (No. 87-5428). In addition, he 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. We therefore deny a certificate of probable cause to appeal and dismiss the appeal. We dispense with oral argument because the dispositive issues recently have been decided authoritatively.
For the purposes of this appeal, we assume that the date Johnson placed on the notice of appeal is the earliest date he would have submitted it to prison authorities