                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 99-6867



JAMES MALLARD, a/k/a F. Brown,

                                            Petitioner - Appellant,

          versus


FRED MENIFEE,

                                             Respondent - Appellee.



Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Raleigh. James C. Fox, District Judge.
(CA-98-675-5-HC)


Submitted:   March 28, 2000                    Decided:   May 1, 2000


Before MURNAGHAN and WILLIAMS, Circuit Judges, and BUTZNER, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


James Mallard, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

     James Mallard seeks to appeal the district court’s order dis-

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

We dismiss the appeal for lack of jurisdiction because Mallard’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

September 15, 1998.      Mallard’s notice of appeal was filed on May

13, 1999, and he failed to obtain an extension or reopening of the

appeal   period.    On   September   21,   1999,   this   court   remanded

Mallard’s case for a determination of whether his notice of appeal

was timely under Houston v. Lack, 487 U.S. 266, 276 (1988).             On

October 29, 1999, acting on this court’s direction, the district

court directed Mallard to submit, within fifteen days of his

receipt of the order, a statement made under penalty of perjury

providing evidence as to the date of filing.        Mallard did not re-

spond to this order.     Given this failure to come forward with evi-


                                     2
dence sufficient to demonstrate a timely filing under Houston, the

district court found Mallard’s notice of appeal untimely.   Finding

no error in this determination, we deny a certificate of appeal-

ability, deny Mallard’s motion for appointment of counsel, and dis-

miss 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




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