Louis Covington, Petitioner-appellant, v. William D. Leeke, Attorney General of South Carolina, T.travis Medlock, Respondents-appellees, 875 F.2d 314 (4th Cir. 1989)

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US Court of Appeals for the Fourth Circuit - 875 F.2d 314 (4th Cir. 1989) Submitted Feb. 28, 1989. Decided May 4, 1989

Louis Covington, appellant pro se.

Frank Louis Valenta, Jr., Assistant Attorney General, Office of the Attorney General of South Carolina, for appellees.

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

PER CURIAM:


Louis Covington, a state prisoner, seeks to appeal the district court's denial of his 28 U.S.C. § 2254 petition and the court's subsequent denial of his motion to vacate the judgment pursuant to Fed. R. Civ. P. 60(b). We deny a certificate of probable cause and dismiss the appeal.

Covington's appeal of the district court's order denying his petition was untimely, as he submitted his notice of appeal to prison authorities outside the 30-day period established by Fed. R. App. P. 4(a) (1).1  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 his appeal of the denial of his habeas corpus petition.

Covington did file a timely appeal of the order denying his motion to vacate the judgment under Fed. R. Civ. P. 60(b). We find, however, that the district court did not abuse its discretion in denying Covington's motion.

Accordingly, we deny a certificate of probable cause and dismiss the appeal. 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.

DISMISSED.

 1

For the purposes of this appeal, we assume that the date Covington placed on the notice of appeal is the earliest date he would have submitted it to prison authorities