Opinion
No. 06-7401.
Submitted: October 31, 2006.
Decided: January 11, 2007.
Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:01-cr-00048-10; 1:04-cv-00051)
Dennis Merrimon Waters, Appellant Pro Se. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
Dennis Waters seeks to appeal the district court's order denying relief on his 28 U.S.C. § 2255 (2000) motion. Parties are accorded sixty days after the entry of the district court's final judgment or order to note an appeal when the United States is a party, 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., Dept of Corr., 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 362 U.S. 220, 229 (1960)).
The district court's order was entered on the docket on July 29, 2005. Waters filed a Motion to Alter or Amend the Judgment pursuant to Fed.R.Civ.P. 59(e), which was denied by the district court on August 23, 2005. The notice of appeal as to the order of July 29, 2005, dated July 31, 2006, was thus filed over nine months late. Because Waters 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 purposes 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 official for mailing. See Fed.R.App.P. 4(c); Houston v. Lack, 487 U.S. 266, 276 (1988).
If, as here, a party timely files a motion to reconsider under Rule 59(e), the time to appeal runs from the district court's entry of an order disposing of that motion. See Fed.R.App.P. 4(a)(4)(A). The tolling of the sixty day period during the pendency of a Rule 59(e) motion does not include any subsequent period for appeal of the denial of the Rule 59(e) motion. Thus, although Waters timely appealed from the August 23, 2005 order denying his Rule 59(e) motion, and his notice of appeal as to the underlying district court judgment of July 29, 2005, was filed within 60 days of this court's disposition of his appeal from the district court's denial of his Rule 59(e) motion, the pendency of Waters's first appeal did not toll his responsibility to note an appeal from the July 29, 2005 judgment within 60 days of the lower court's resolution of his Rule 59(e) motion on August 23, 2005.
DISMISSED