UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 98-6002

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus

MALEAKE THOMAS, Defendant - Appellant.

Appeal from the United States District Court for the Eastern Dis- trict of North Carolina, at Raleigh. Malcolm J. Howard, District Judge. (CR-93-36, CA-95-131-4-CV-H)

Submitted: March 12, 1998 Decided: March 26, 1998

Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Maleake Thomas, Appellant Pro Se. David Paul Folmar, Jr., Assis- tant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Appellant appeals the district court's denial of his motion to file an out-of-time appeal, which the district court denied on the ground that Appellant failed to demonstrate good cause for allowing the late appeal. We dismiss this appeal on an alternate ground.

The district court entered its final order denying Appellant's Fed. R. Civ. P. 59(e) motion for reconsideration of the district court's order denying his motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997), on March 28, 1997; Appellant's motion to file a late appeal was filed on November 26, 1997. Pursuant to Fed. R. App. P. 4(a)(5), Appellant had thirty days beyond the expiration of his sixty-day appeal period to file a motion for extension of time to file his notice of appeal. Appellant's failure to file with the district court a timely motion for leave to file a late appeal was fatal to his motion. Accordingly, we deny a certificate of ap- pealability and dismiss this appeal on the ground that Appellant's motion to file an out-of-time appeal was untimely pursuant to Fed. R. App. P. 4(a)(5). We dispense with oral argument because the facts and legal contentions are adequately presented in the mate- rials before the court and argument would not aid the decisional process.

DISMISSED