                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-6712



SPENCER LAMONT STACEY,

                                               Petitioner - Appellant,

          versus


THEODIS   BECK,  Secretary,     North   Carolina
Department of Corrections,

                                                Respondent - Appellee.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CA-04-664-1-WLO)


Submitted:   September 30, 2005             Decided:   October 13, 2005


Before KING, GREGORY, and DUNCAN, Circuit Judges.


Remanded by unpublished per curiam opinion.


Spencer Lamont Stacey, Appellant Pro Se.    Sandra Wallace-Smith,
Assistant Attorney General, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

                Spencer Lamont Stacey seeks to appeal the dismissal of

his 28 U.S.C. § 2254 (2000) petition entered on March 3, 2005.

Stacey, however, did not file his notice of appeal until April 29,

2005,* which is outside the thirty day appeal period under Fed. R.

App.       P.   4(a)(1)(A).    The   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)).

                We construe Stacey’s pro se notice of appeal, in which he

indicated his intent to appeal and alleged that he did not timely

receive notice of his action being dismissed, as a motion to reopen

the time to note an appeal under Fed. R. App. P. 4(a)(6).                 See

United States v. Feuver, 236 F.3d 725, 729 & n.7 (D.C. Cir. 2001).

Accordingly, we remand the case to the district court for it to

determine whether Stacey satisfies the requirements of Fed. R. App.

P. 4(a)(6).       Ogden v. San Juan County, 32 F.3d 452, 454 (10th Cir.

1994).      The record, as supplemented, then will be returned to this

court for further consideration.



                                                                   REMANDED




       *
      This court has given Stacey the benefit of the “prison
mailbox” rule, Houston v. Lack, 487 U.S. 266 (1988), regarding the
filing date of this document.

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