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  • United States v. Cargill, 4th Cir. (2005)

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    Frederick Cargill appealed the district court's denial of his 28 U.S.C. § 2255 motion. The United States Court of Appeals for the Fourth Circuit dismissed the appeal for lack of jurisdiction because Cargill failed to file a timely notice of appeal within 60 days of the district court's final order as required by Federal Rules of Appellate Procedure 4(a)(1)(B). As the notice of appeal was filed over a year after the district court's order, outside both the 60 day limit and any extension, the Fourth Circuit determined it did not have jurisdiction to consider the appeal.

    Original Description:

    Filed: 2005-08-26 Precedential Status: Non-Precedential Docket: 05-7037

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    Frederick Cargill appealed the district court's denial of his 28 U.S.C. § 2255 motion. The United States Court of Appeals for the Fourth Circuit dismissed the appeal for lack of jurisdiction because Cargill failed to file a timely notice of appeal within 60 days of the district court's final order as required by Federal Rules of Appellate Procedure 4(a)(1)(B). As the notice of appeal was filed over a year after the district court's order, outside both the 60 day limit and any extension, the Fourth Circuit determined it did not have jurisdiction to consider the appeal.

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    United States v. Cargill, 4th Cir. (2005)

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    Frederick Cargill appealed the district court's denial of his 28 U.S.C. § 2255 motion. The United States Court of Appeals for the Fourth Circuit dismissed the appeal for lack of jurisdiction because Cargill failed to file a timely notice of appeal within 60 days of the district court's final order as required by Federal Rules of Appellate Procedure 4(a)(1)(B). As the notice of appeal was filed over a year after the district court's order, outside both the 60 day limit and any extension, the Fourth Circuit determined it did not have jurisdiction to consider the appeal.

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    of 2

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 05-7037

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    versus
    FREDERICK ANTHONY CARGILL,
    Defendant - Appellant.

    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro. James A. Beaty, Jr.,
    District Judge. (CR-94-300; CA-03-937)

    Submitted:

    August 18, 2005

    Decided:

    August 26, 2005

    Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.

    Dismissed by unpublished per curiam opinion.

    Frederick Anthony Cargill, Appellant Pro Se.


    Lawrence Patrick
    Auld, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
    Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    Frederick Cargill seeks to appeal the district courts
    order denying his 28 U.S.C. 2255 (2000) motion.

    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 courts 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).
    mandatory and jurisdictional.

    This appeal period is

    Browder v. Director, Dept of

    Corr., 434 U.S. 257, 264 (1978) (quoting United States v. Robinson,
    361 U.S. 220, 229 (1960)).
    The district courts order was entered on the docket on
    June

    18,

    2004.

    Cargill

    filed

    appealability on June 6, 2005.

    request

    for

    certificate

    of

    Because Cargill failed to file a

    timely notice of appeal, and because he did not obtain an extension


    or

    reopening

    of

    the

    appeal

    period,

    we

    deny

    his

    certificate of appealability and dismiss the appeal.

    motion

    for

    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.
    DISMISSED

    - 2 -

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