Kevin Davis v. State of South Carolina; Warden Lee Correctional Institution

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-8114
KEVIN DAVIS,
Petitioner - Appellant,
v.
STATE OF SOUTH CAROLINA; WARDEN LEE CORRECTIONAL
INSTITUTION,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Sol Blatt, Jr., Senior District
Judge. (8:08-cv-02448-SB)
Submitted: February 18, 2010 Decided: February 26, 2010
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kevin Davis, Appellant Pro Se. Alphonso Simon, Jr., OFFICE OF
THE ATTORNEY GENERAL OF SOUTH CAROLINA, Donald John Zelenka,
Deputy Assistant Attorney General, Columbia, South Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kevin Davis seeks to appeal the district court’s order
adopting the recommendation of the magistrate judge and
dismissing his 28 U.S.C. § 2254 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 September 8, 2009. The notice of appeal was filed on
November 18, 2009.* Because Davis 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
*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).

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

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