UNPUBLISHED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 Dis- trict 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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 court’s order

dismissing his petition for habeas corpus, pursuant to

(West 1994 & Supp. 1999). We dismiss the appeal for lack of

jurisdiction because Smith’s notice of appeal was not timely filed.

Parties are accorded thirty days after entry of the district

court’s 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). This appeal period is “mandatory and

jurisdictional.” Browder v. Director, Dep’t of Corrections,

(1978) (quoting United States v. Robinson,

(1960)).

The district court’s order was entered on the docket on August

27, 1999. Smith’s notice of appeal was filed on September 28,

1999.* 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,

(1988).

2 adequately presented in the materials before the court and argument

would not aid the decisional process.

DISMISSED

3