                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 03-7330



TYRONE L. JOHNSON,

                                           Petitioner - Appellant,

          versus


D. A. BRAXTON, Warden for the Red Onion State
Prison,

                                            Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  David G. Lowe, Magistrate
Judge. (CA-02-930)


Submitted:   June 10, 2004                 Decided:   June 16, 2004


Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Tyrone L. Johnson, Appellant Pro Se. Donald Eldridge Jeffrey, III,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            This matter is before the court following a limited

remand for a determination as to whether Tyrone L. Johnson could

show excusable neglect with regard to his untimely notice of

appeal.     Because Johnson did not make a showing of excusable

neglect, we dismiss the appeal for lack of jurisdiction.

            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(a)(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

July   1,   2003.   Johnson’s   notice   of   appeal   was   executed   on

August 21, 2003.    On limited remand to the district court for a

determination of excusable neglect, Johnson filed a motion to

withdraw and indicated he no longer wished to pursue his appeal.

This does not constitute a showing a excusable neglect.          Because

Johnson failed to file a timely notice of appeal or to obtain an

extension or reopening of the appeal period, we dismiss the appeal.

We deny Johnson’s motion for a certificate of appealability.            We

dispense with oral argument because the facts and legal contentions


                                 - 2 -
are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                     DISMISSED




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