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63 F. App'x 758

Whitfield v. Garman

U.S. Courts of Appeals

Decided May 28, 2003

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U.S. Courts of Appeals · decided 2003-05-28

Applies 28 U.S.C. § 2253 (Antiterrorism and Effective Death Penalty Act of 1996) · 28 U.S.C. § 2254 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Browder v. Director Department of Corrections of Illinois · Houston v. Lack · United States v. Robinson

Decided 2003-05-28

¶1 Dismissed by unpublished PER CURIAM opinion.

*759 PER CURIAM.

¶2 Juma A. Whitfield seeks to appeal the district court’s order denying his 28 U.S.C. § 2254 (2000) petition as untimely filed. We dismiss the appeal for lack of jurisdiction because the notice of appeal was not timely filed.

¶3 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. Director, 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)).

¶4 The district court’s order was entered on the docket on February 3, 2003. Giving Whitfield the benefit of Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), his notice of appeal was filed on March 12, 2003. Because Whitfield failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we deny a certificate of appealability and dismiss the appeal. *

¶5 We deny Whitfield’s motion to proceed in forma pauperis and 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.

¶6 DISMISSED.

*

¶7 Because the appeal is late, we lack jurisdiction to determine whether Whitfield has established grounds for a certificate of appealability under 28 U.S.C. § 2253(c)(1) (2000).

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