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    Unpublished United States Court of Appeals For The Fourth Circuit

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    Slade Miller appealed the district court's denial of his 28 U.S.C. § 2255 motion and denial of his motion for reconsideration. The Fourth Circuit dismissed the appeal of the § 2255 motion for lack of jurisdiction because Miller's notice of appeal was filed beyond the 60-day deadline. The Fourth Circuit also dismissed the appeal of the denial of reconsideration, finding no abuse of discretion by the district court under Fed. R. Civ. P. 60(b). The Fourth Circuit denied a certificate of appealability and dispense with oral argument.

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    Unpublished United States Court of Appeals For The Fourth Circuit

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    Slade Miller appealed the district court's denial of his 28 U.S.C. § 2255 motion and denial of his motion for reconsideration. The Fourth Circuit dismissed the appeal of the § 2255 motion for lack of jurisdiction because Miller's notice of appeal was filed beyond the 60-day deadline. The Fourth Circuit also dismissed the appeal of the denial of reconsideration, finding no abuse of discretion by the district court under Fed. R. Civ. P. 60(b). The Fourth Circuit denied a certificate of appealability and dispense with oral argument.

    Original Description:

    Filed: 1998-08-28 Precedential Status: Non-Precedential Docket: 97-7073

    Original Title

    Miller v. United States, 4th Cir. (1998)

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    Slade Miller appealed the district court's denial of his 28 U.S.C. § 2255 motion and denial of his motion for reconsideration. The Fourth Circuit dismissed the appeal of the § 2255 motion for lack of jurisdiction because Miller's notice of appeal was filed beyond the 60-day deadline. The Fourth Circuit also dismissed the appeal of the denial of reconsideration, finding no abuse of discretion by the district court under Fed. R. Civ. P. 60(b). The Fourth Circuit denied a certificate of appealability and dispense with oral argument.

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    20 views3 pages

    Unpublished United States Court of Appeals For The Fourth Circuit

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    Scribd Government Docs
    Slade Miller appealed the district court's denial of his 28 U.S.C. § 2255 motion and denial of his motion for reconsideration. The Fourth Circuit dismissed the appeal of the § 2255 motion for lack of jurisdiction because Miller's notice of appeal was filed beyond the 60-day deadline. The Fourth Circuit also dismissed the appeal of the denial of reconsideration, finding no abuse of discretion by the district court under Fed. R. Civ. P. 60(b). The Fourth Circuit denied a certificate of appealability and dispense with oral argument.

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT
    SLADE MILLER,
    Plaintiff-Appellant,
    v.

    No. 97-7073

    UNITED STATES OF AMERICA,


    Defendant-Appellee.
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Alexandria.
    Richard L. Williams, Senior District Judge.
    (CR-89-196-A, CA-97-676-AM)
    Submitted: July 31, 1998
    Decided: August 28, 1998
    Before WIDENER and LUTTIG, Circuit Judges, and BUTZNER,
    Senior Circuit Judge.
    _________________________________________________________________
    Dismissed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Slade Miller, Appellant Pro Se. William Neil Hammerstrom, Jr.,
    OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).

    OPINION
    PER CURIAM:
    Appellant seeks to appeal the district court's orders denying his 28
    U.S.C.A. 2255 (West 1994 & Supp. 1998) motion and denying his
    motion for reconsideration. To the extent that Appellant seeks to
    appeal the denial of his 2255 motion, his notice of appeal is
    untimely, and we dismiss for lack of jurisdiction. The time periods for
    filing notices of appeal are governed by Fed. R. App. P. 4. These periods are "mandatory and jurisdictional." Browder v. Director, Dep't of
    Corrections, 434 U.S. 257, 264 (1978) (citing United States v.
    Robinson, 361 U.S. 220, 229 (1960)). Parties to civil actions, when
    the United States is a party, have sixty days within which to file in
    the district court notices of appeal from judgments or final orders. See
    Fed. R. App. P. 4(a)(1). The only exceptions to the appeal period are
    when the district court extends the time to appeal under Fed. R. App.
    P. 4(a)(5) or reopens the appeal period under Fed. R. App. P. 4(a)(6).
    The district court entered its order denying Appellant's motion
    under 28 U.S.C.A. 2255 on May 12, 1997; Appellant's notice of
    appeal was filed on July 14, 1997,* which is beyond the sixty-day
    appeal period. Appellant's failure to note a timely appeal or obtain an
    extension of the appeal period leaves this court without jurisdiction
    to consider the merits of Appellant's appeal. We therefore deny a certificate of appealability and dismiss the appeal.
    Regarding Appellant's appeal of the district court's order denying
    his motion to reconsider, under Fed. R. Civ. P. 60(b), we do not find
    the district court abused its discretion. See CNF Constructors, Inc. v.
    Donohoe Constr. Co., 57 F.3d 395, 401 (4th Cir. 1995); United States
    v. Williams, 674 F.2d 310, 312-13 (4th Cir. 1982). Accordingly, we
    dismiss the appeal of the district court's order denying Appellant's
    motion to reconsider under Rule 60(b). We deny Appellant's motion
    for appointment of counsel and dispense with oral argument because
    the facts and legal contentions are adequately presented in the materi_________________________________________________________________
    *The notice was actually filed on July 18 but we have given Appellant
    the benefit of the Supreme Court's decision in Houston v. Lack, 487 U.S.
    266 (1988).
    2

    als before the court and argument would not aid the decisional process.
    DISMISSED
    3

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