UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-6282

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ORTEZ ANTOINE PROPST,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. Frank W. Bullock, Jr.,

District Judge. (CR-99-325; CA-01-176-1)

Submitted: June 10, 2004 Decided: June 25, 2004

Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Dismissed by unpublished per curiam opinion.

Ortez Antoine Propst, Appellant Pro Se. Steven Hale Levin, OFFICE

OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*Rule 4(c)(1) states that a prisoner’s notice of appeal is

timely if it is deposited in the institution’s internal mail system

on or before the last day for filing, but that the inmate must use

that system, if it exists, to receive the benefit of the rule.

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PER CURIAM:

Ortez Antoine Propst seeks to appeal the district court’s

order accepting a magistrate judge’s recommendation to deny relief

on his motion filed under 28 U.S.C. § 2255 (2000), and a subsequent

order denying his Fed. R. Civ. P. 59(e) motion. Because Propst’s

notice of appeal was received in the district court after the

appeal period, we remanded the case to the district court and

instructed the district court to obtain information regarding the

timeliness of the filing under Fed. R. App. P. 4(c)(1)* and Houston

v. Lack, 487 U.S. 266 (1988) (notice considered filed as of the

date Appellant delivers it to prison officials for forwarding to

the court). 

On remand, the district court issued an order finding

that Propst’s appeal was not timely filed. An appellate court

cannot disregard a district court’s factual findings absent clear

error. A finding is “clearly erroneous” when the reviewing court

“is left with the definite and firm conviction that a mistake has

been committed.” United States v. United States Gypsum Co., 333

U.S. 364, 395 (1948).

The district court entered its order denying Propst’s

motion for reconsideration on February 8, 2002. Pursuant to Fed.
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R. App. P. 4(a), Propst’s notice of appeal was due by April 9,

2002. Propst dated the certificate of service on his notice of

appeal April 8, 2002; the court entered the notice of appeal on

April 12, 2002. On remand, the Government filed an affidavit from

Charles Darby, Inmate Systems Manager at FCI Ashland, that confirms

that Propst was an inmate there at the relevant time. Darby also

stated that special mail procedures for legal mail were in effect

when Propst mailed his notice. He maintained, however, that

Propst’s notice of appeal was not processed through the special

mail procedures designed for legal mail because the envelope

containing the notice of appeal was not stamped with the stamp mark

that it would have had if it were deposited in the box reserved for

special mail. Darby concluded that the notice was placed in the

unit’s mail receptacle either on April 9, 2002, after mail was

collected that day, or on Wednesday, April 10, 2002, before mail

was collected on that day. Propst did not respond.

In light of the Government’s submissions, the district

court found that, although FCI Ashland had a system designed for

legal mail at the time Propst’s notice of appeal was mailed, Propst

did not use that system to mail the notice. The court therefore

concluded that Propst could not benefit from Fed. R. App. P.

4(c)(1) and deemed his notice of appeal filed the day it was

received by the clerk, April 12. Because this date falls outside

of the sixty-day appeal period, the court found that Propst’s
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notice of appeal was not timely filed. We find that the district

court did not clearly err in finding that Propst’s notice of appeal

was untimely.

Propst’s failure to note a timely appeal or to obtain

either an extension or a reopening of the appeal period leaves this

court without jurisdiction to consider the merits of Propst’s

appeal. See Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264

(1978) (explaining that requirement of a timely notice of appeal is

“mandatory and jurisdictional”). We therefore dismiss the appeal

as untimely. 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