United States of America v. Marshall D. Brooks

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6400
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARSHALL D. BROOKS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:02-cr-00454-HEH-1; 3:05-cv-00348-HEH)
Submitted: June 9, 2008 Decided: June 27, 2008
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Marshall D. Brooks, Appellant Pro Se. Roderick Charles Young,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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* For the purpose of this appeal, we assume that the date
appearing on Brooks’ motion for a certificate of appealability is
the earliest date it could have been properly delivered to prison
officials for mailing to the court. Fed. R. App. P. 4(c); Houston
v. Lack, 487 U.S. 266 (1988).
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PER CURIAM:
Marshall D. Brooks seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2255 (2000) motion. We
dismiss the appeal for lack of jurisdiction because the notice of
appeal was not timely filed.
When the United States or its officer or agency is a
party, the notice of appeal must be filed no more than sixty days
after the entry of the district court’s final judgment or order,
Fed. R. App. P. 4(a)(1)(B), 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. Dir., Dep’t of Corr.,
434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361
U.S. 220, 229 (1960)).
The district court’s order denying Brooks’ § 2255 motion
was entered July 11, 2006. Brooks subsequently filed a Motion for
Certificate of Appealability in the district court on June 28,
2007.* Even if this motion were determined to be the functional
equivalent of a notice of appeal, see Smith v. Barry, 502 U.S. 244,
248-49 (1992), we conclude that it would have been untimely filed.
Because Brooks failed to file a timely notice of appeal or timely

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obtain an extension or reopening of the appeal period, we dismiss
the appeal.
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

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