Opinion
No. 09-8114.
Submitted: February 18, 2010.
Decided: February 26, 2010.
Appeal from the United States District Court for the District of South Carolina, at Anderson. Sol Blatt, Jr., Senior District Judge. (8:08-cv-02448-SB).
Kevin Davis, Appellant Pro Se. Alphonso Simon, Jr., Office of the Attorney General of South Carolina, Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellees.
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
Kevin Davis seeks to appeal the district court's order adopting the recommendation of the magistrate judge and dismissing his 28 U.S.C. § 2254 petition. We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed.
Parties are accorded thirty days after the entry of the district court's final judgment or order to note an appeal, Fed.R.App.P. 4(a)(1)(A), unless the district court extends the appeal period under Fed.R.App.P. 4(a)(5), or reopens the appeal period under Fed.R.App.P. 4(a)(6). This appeal period is "mandatory and jurisdictional." Browder v. Dir., Dep't of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960)).
The district court's order was entered on the docket on September 8, 2009, 2009 WL 2899011. The notice of appeal was filed on November 18, 2009. Because Davis failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
For the purpose of this appeal, we assume that the date appearing on the notice of appeal is the earliest date it could have been properly delivered to prison officials for mailing to the court. Fed.R.App.P. 4(c); Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).
DISMISSED.