                   Rehearing granted, June 27, 2006

                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-6009



PAUL D. BAKER,

                                            Petitioner - Appellant,

          versus


COMMONWEALTH OF VIRGINIA,

                                             Respondent - Appellee.


Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CA-04-456-7-JCT)


Submitted:   July 27, 2005                 Decided:   August 2, 2005


Before KING, GREGORY, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Paul D. Baker, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

           Paul D. Baker seeks to appeal the district court’s order

construing his Fed. R. Civ. P. 60(b) motion as a petition for writ

of habeas corpus pursuant to 28 U.S.C. § 2254 (2000) and dismissing

it as successive.     We dismiss the appeal for lack of jurisdiction

because the notice of appeal was not timely filed.

           Parties are accorded thirty days after the entry of the

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

App. P. 4(a)(1)(A), 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 Corr., 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

August 12, 2004.    The notice of appeal was filed on December 9,

2004.*   Because Baker 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 Baker’s motion to appoint counsel and

dispense with oral argument because the facts and legal contentions




     *
      For the purpose of this appeal, we assume that the date
appearing on the notice of appeal is the earliest date it could
have been properly delivered to prison officials for mailing to the
court. See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266
(1988).

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

argument would not aid the decisional process.



                                                     DISMISSED




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