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  • Smith v. Garraghty, 4th Cir. (2000)

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    The United States Court of Appeals for the Fourth Circuit dismissed Kerry Lee Smith's appeal of a district court order denying his petition for habeas corpus. The district court had dismissed Smith's habeas petition pursuant to 28 U.S.C. § 2254. The Court of Appeals found that it lacked jurisdiction over Smith's appeal because his notice of appeal was filed after the mandatory 30-day deadline, and he had not received an extension or reopening of the appeals period. As a result, the Court of Appeals denied a certificate of appealability and dismissed Smith's appeal.

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    Filed: 2000-03-29 Precedential Status: Non-Precedential Docket: 99-7322

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    The United States Court of Appeals for the Fourth Circuit dismissed Kerry Lee Smith's appeal of a district court order denying his petition for habeas corpus. The district court had dismissed Smith's habeas petition pursuant to 28 U.S.C. § 2254. The Court of Appeals found that it lacked jurisdiction over Smith's appeal because his notice of appeal was filed after the mandatory 30-day deadline, and he had not received an extension or reopening of the appeals period. As a result, the Court of Appeals denied a certificate of appealability and dismissed Smith's appeal.

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    4 views3 pages

    Smith v. Garraghty, 4th Cir. (2000)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit dismissed Kerry Lee Smith's appeal of a district court order denying his petition for habeas corpus. The district court had dismissed Smith's habeas petition pursuant to 28 U.S.C. § 2254. The Court of Appeals found that it lacked jurisdiction over Smith's appeal because his notice of appeal was filed after the mandatory 30-day deadline, and he had not received an extension or reopening of the appeals period. As a result, the Court of Appeals denied a certificate of appealability and dismissed Smith's appeal.

    Copyright:

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 99-7322

    KERRY LEE SMITH,


    Petitioner - Appellant,
    versus
    WARDEN GARRAGHTY,
    Respondent - Appellee.

    Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, District Judge.
    (CA-98-763-3)

    Submitted:

    March 23, 2000

    Decided:

    March 29, 2000

    Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

    Dismissed by unpublished per curiam opinion.


    Kerry Lee Smith, Appellant Pro Se. Linwood Theodore Wells, Jr.,
    OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
    Appellee.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    Kerry Lee Smith seeks to appeal the district courts order
    dismissing his petition for habeas corpus, pursuant to 28 U.S.C.A.
    2254 (West 1994 & Supp. 1999).

    We dismiss the appeal for lack of

    jurisdiction because Smiths notice of appeal was not timely filed.


    Parties are accorded thirty days after entry of the district
    courts final judgment or order to note an appeal, see Fed. R. App.
    P. 4(a)(1), 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).
    jurisdictional.

    This appeal period is mandatory and

    Browder v. Director, Dept of Corrections, 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 August
    27, 1999.
    1999.*

    Smiths notice of appeal was filed on September 28,

    Because Smith 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. We dispense
    with oral argument because the facts and legal contentions are

    For the purposes of this appeal we assume that the date


    Smith wrote on the notice of appeal is the earliest date it would
    have been submitted to prison authorities. See Houston v. Lack,
    487 U.S. 266 (1988).
    2

    adequately presented in the materials before the court and argument


    would not aid the decisional process.

    DISMISSED

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