95 F3d 41 Bennington v. Ward

95 F.3d 41

James R. BENNINGTON, Petitioner--Appellant,
Bob WARD; Charles Molony Condon, The Attorney General of
the State of South Carolina, Respondents--Appellees.

No. 96-6567.

United States Court of Appeals, Fourth Circuit.

Submitted Aug. 15, 1996.
Decided Aug. 21, 1996.

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

James R. Bennington, Appellant Pro Se. Donald John Zelenka, Chief Deputy Attorney General, Columbia, South Carolina, for Appellees.

Before MURNAGHAN and ERVIN, Circuit Judges, and BUTZNER, Senior Circuit Judge.


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Appellant noted this appeal outside the thirty-day appeal period established by Fed. R.App. P. 4(a)(1), failed to obtain an extension of the appeal period within the additional thirty-day period provided by Fed. R.App. P. 4(a)(5), and is not entitled to relief under Fed. R.App. P. 4(a)(6). The time periods established by Fed. R.App. P. 4 are "mandatory and jurisdictional." Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)). The district court entered its order on December 19, 1995; Appellant's notice of appeal was filed on March 26, 1996. Appellant's failure to note a timely appeal or obtain an extension of the appeal period deprives this court of jurisdiction to consider this case. To the extent that Appellant's motion for a certificate of probable cause to appeal and "Motion for Notice of Right to Appeal" could be construed as a notice of appeal, that notice is timely. However, the district court properly determined that Appellant's ineffective assistance of counsel claim lacked merit, and that his remaining claims are procedurally barred. Bennington v. Ward, No. CA-95-1612-2-20AJ (D.S.C. Dec. 19, 1995). We therefore deny a certificate of probable cause to appeal; to the extent that a certificate of appealability is required, we deny such a certificate and 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.