OpenJurist

833 F2d 1004 Gray v. E Thompson

833 F.2d 1004
Unpublished Disposition

Freddie Wallace GRAY, Jr., Petitioner-Appellant,
v.
Chuck E. THOMPSON, Acting Warden, Attorney General of the
State of Virginia, Respondents-Appellees.

No. 87-7258.

United States Court of Appeals, Fourth Circuit.

Submitted: Sept. 29, 1987.
Decided: Nov. 18, 1987.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Freddie Wallace Gray, Jr., appellant pro se.

Robert Quentin Harris, Assistant Attorney General, for appellees.

Before SPROUSE, WILKINSON, and WILKINS, Circuit Judges.

PER CURIAM:

1

Freddie Wallace Gray, Jr., a Virginia inmate, seeks to appeal the judgment of the district court dismissing his petition for habeas corpus relief brought pursuant to 28 U.S.C. Sec. 2254. The district court entered final judgment in this case on June 11, 1987. Gray's notice of appeal, although apparently deposited with the prison mail facility on June 30, 1987,1 was not filed until July 16, 1987. This was thirty-five days after entry of judgment and three days2 later than the period prescribed by Fed.R.App.P. 4(a)(1).

2

Under Fed.R.App.P. 4(a)(1), an appeal must be noted within thirty days after entry of judgment. Under Fed.R.App.P. 4(a)(5), a district court, "upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration [of the appeal period]." Absent a request for extension of the appeal period, a notice of appeal filed in this second thirty-day period is untimely and ineffective to confer appellate jurisdiction. Shah v. Hutto, 722 F.2d 1167 (4th Cir.1983) (en banc), cert. denied, 466 U.S. 975 (1984). Gray did not file a motion to extend the appeal period; therefore this Court lacks jurisdiction to hear his appeal.

3

Because the dispositive issues recently have been decided authoritatively, we deny a certificate of probable cause to appeal, dispense with oral argument and dismiss this case for lack of jurisdiction.

4

DISMISSED.

1

The certificate of service included in the notice of appeal indicates that the notice was mailed on this date

2

Because the thirtieth day was a Saturday, Gray's appeal would have been timely if filed on Monday, July 13, 1987