Opinion
No. 07-7771.
Submitted: July 31, 2008.
Decided: August 4, 2008.
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Richard L. Voorhees, District Judge. (3:97-cr-00040-RLV-2).
Juan Bautista Alomia-Torres, Appellant Pro Se. Robert Jack Higdon, Jr., Office of the United States Attorney, Raleigh, North Carolina, for Appellee.
Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.
Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
Juan Bautista Alomia-Torres seeks to appeal the district court's order construing his Fed.R.Civ.P. 60(b) motion as a successive 28 U.S.C. § 2255 (2000) motion and dismissing it without prejudice. We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed.
When the United States or its officer or agency is a party, the notice of appeal must be filed no more than sixty days after the entry of the district court's final judgment or order, Fed.R.App.P. 4(a)(1)(B), 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 April 20, 2006. The notice of appeal was filed, at the earliest, on October 22, 2007. Because Alomia-Torres 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.
In accordance with Fed.R.App.P. 4(c)(1) and Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), a prisoner's notice of appeal is deemed "filed" when it is deposited into the institution's mail system. Alomia-Torres' notice of appeal is dated October 22, 2007, and we conclude that this was the earliest date it could have been filed.
DISMISSED.