Joseph Michael Grate v. GENE M. JOHNSON, Director of the Virginia Department of Corrections

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6771
JOSEPH MICHAEL GRATE,
Petitioner - Appellant,
v.
GENE M. JOHNSON, Director of the Virginia Department of
Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:07-cv-00020-JBF-FBS)
Submitted: September 11, 2008 Decided: September 16, 2008
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Joseph Michael Grate, Appellant Pro Se. James Robert Bryden, II,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, 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Unpublished opinions are not binding precedent in this circuit.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 the notice of appeal 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).
2
PER CURIAM:
Joseph Michael Grate seeks to appeal the district court’s
order accepting the recommendation of the magistrate judge and
denying relief on his 28 U.S.C. § 2254 (2000) petition. We dismiss
the appeal for lack of jurisdiction because the notice of appeal
was not timely filed.
Parties are accorded thirty days after the entry of the
district court’s final judgment or order to note an appeal, Fed. R.
App. P. 4(a)(1)(A), 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 was entered on the docket on
October 18, 2007. The notice of appeal was filed on April 17,
2008.* Because Grate failed to file a timely notice of appeal or
to 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

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

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