United States of America v. Director, Dep’t of Corrections,424 U.S. 257, 264 1978 quoting United States v.…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-7414
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MALCOLM EXCELL, a/k/a Rush,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Newport News. Robert G. Doumar, Senior Dis-
trict Judge. (CR-95-49-4, CA-00-60-4)
Submitted: December 15, 2000 Decided: January 16, 2001
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
Malcolm Excell, Appellant Pro Se. Robert Edward Bradenham, II,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Malcolm Excell appeals from the district court’s order dis-
missing his 28 U.S.C.A. § 2255 (West Supp. 2000) motion as un-
timely, and the court’s order denying reconsideration. We dismiss
the appeal of the underlying order for lack of jurisdiction because
Excell’s notice of appeal was not timely filed, and affirm the
denial of reconsideration.
Parties are accorded sixty days after the entry of the dis-
trict court’s final judgment to note an appeal, 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 jurisdic-
tional.” Browder v. Director, Dep’t of Corrections,424 U.S. 257,
264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229
(1960)).
The district court’s order was entered on the docket on
July 12, 2000. Excell’s notice of appeal was filed on October 3,
2000. Because Excell 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.
Excell also appeals from the district court order denying his
Rule 60(b) motion seeking reconsideration of the court’s prior
order dismissing as untimely his 28 U.S.C.A. § 2255 (West Supp.

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* An appeal from the denial of a Rule 60(b) motion is reviewed
only with respect to the grounds set forth in Rule 60(b). The
merits of the underlying order are not reviewable where, as in this
case, the appellant failed to timely appeal the underlying order.
In re Burnley, 988 F.2d 1, 3 (4th Cir. 1992).
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2000) motion.* We have reviewed the record and the district
court’s opinion and find no abuse of discretion. In re Burnley,
988 F.2d 1, 3 (4th Cir. 1992). Accordingly, although we grant
Excell’s motion for clarification, we affirm on the reasoning of
the district court. United States v. Excell, No. CR-95-49-4; CA-
00-60-4 (E.D. Va. July 12, 2000). 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 IN PART; AFFIRMED IN PART

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