UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 99-6772

AARON W. BAITY,

Petitioner - Appellant,

versus

NORTH CAROLINA ATTORNEY GENERAL; STATE OF

NORTH CAROLINA,

Respondents - Appellees.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. Paul Trevor Sharp, Magistrate

Judge. (CA-98-1045-1)

Submitted: October 21, 1999 Decided: October 27, 1999

Before WIDENER and TRAXLER, Circuit Judges, and BUTZNER, Senior

Circuit Judge.

Dismissed by unpublished per curiam opinion.

Aaron W. Baity, Appellant Pro Se. Clarence Joe DelForge, III,

OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North

Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1 The parties consented to the jurisdiction of the magistrate

judge pursuant to 28 U.S.C. § 636 (1994).

2 For the purposes of this appeal, we assume that the date

appearing on the notice of appeal is the earliest date it could

have been given to prison officials for mailing. See Fed R. App.

P. 4(c); Houston v. Lack, 487 U.S. 266 (1988).

2

PER CURIAM:

Aaron W. Baity seeks to appeal the magistrate judge’s1 orders

denying his 28 U.S.C.A. § 2254 (West 1994 & Supp. 1999) petition

and his Fed. R. Civ. P. 60(b) motion for reconsideration. As an

initial matter, we dismiss the appeal of Baity’s § 2254 petition

for lack of jurisdiction because Baity’s notice of appeal was not

timely filed.

Parties are accorded thirty days after entry of the district

court’s final judgment or order to note an appeal, see Fed. R. App.

P. 4(b)(1), 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. Director, Dep’t of Corrections, 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 April

14, 1999. Baity’s notice of appeal was filed on May 29.2 Because

Baity failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we deny a certificate of

appealability and dismiss the appeal.
3 Although the district court’s order is marked as “filed” on

April 13, 1999, the district court’s records show that it was

entered on the docket sheet on April 14, 1999. Pursuant to Rules

58 and 79(a) of the Federal Rules of Civil Procedure, it is the

date that the order was physically entered on the docket sheet that

we take as the effective date of the district court’s decision.

Wilson v. Murray, 806 F.2d 1232, 1234-35 (4th Cir. 1986).

3

Regarding Baity’s appeal from the denial of his motion for

reconsideration, we have reviewed the record and the magistrate

judge’s opinion and find no reversible error. Accordingly, we deny

a certificate of appealability and dismiss on the reasoning of the

magistrate judge. See Baity v. North Carolina Attorney Gen., No.

CA-98-1045-1 (M.D.N.C. Apr. 14 & May 20, 1999).3 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