UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-7869

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MELVIN G. STEWART,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Leonie M. Brinkema, District

Judge. (CA-98-168-1; CA-05-581-1)

Submitted: June 28, 2006 Decided: July 18, 2006

Before KING, SHEDD, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Melvin G. Stewart, Appellant Pro Se. Paul Joseph McNulty, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Melvin G. Stewart seeks to appeal the district court’s

order dismissing as untimely his 28 U.S.C. § 2255 (2000) motion.

We dismiss the appeal for lack of jurisdiction because a 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)). A prisoner’s notice of appeal is deemed

filed when submitted to prison officials for mailing in accordance

with Houston v. Lack, 487 U.S. 266 (1988). However, the prisoner

must comply with Fed. R. App. P. 4(c)(1) and 28 U.S.C. § 1746

(2000) to benefit from this mailbox rule.

The district court’s judgment was entered on the docket

on July 7, 2005. Stewart filed a letter with the district court on

November 21, 2005, inquiring about a notice of appeal filed in his

case on July 26, 2005. Stewart informed that the notice of appeal

was submitted by someone assisting him with his case. The district

court, having received nothing prior to this date in Stewart’s case
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since entry of judgment, filed the letter as a notice of appeal.

To the extent the November letter is construed as a notice of

appeal, it is clearly untimely. With respect to Stewart’s

assertion that a timely notice of appeal was filed in July 2005, we

find that remand for further factual findings under Houston v. Lack

is not warranted. Stewart failed to comply with Fed. R. App. P.

4(c)(1) and 28 U.S.C. § 1746 and does not allege that he delivered

the notice of appeal to prison officials for mailing, but rather

states that it was submitted by someone assisting him with his

case. Accordingly, we find he is not entitled to the benefit of

the mailbox rule under Houston v. Lack. 

Because Stewart has 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

materials before the court and argument would not aid the

decisional process.

DISMISSED