                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-6771



JOSEPH MICHAEL GRATE,

                Petitioner - Appellant,

          v.


GENE M. JOHNSON, Director of the Virginia Department of
Corrections,

                Respondent - Appellee.


Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:07-cv-00020-JBF-FBS)


Submitted:   September 11, 2008       Decided:   September 16, 2008


Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Joseph Michael Grate, Appellant Pro Se. James Robert Bryden, II,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Joseph Michael Grate seeks to appeal the district court’s

order accepting the recommendation of the magistrate judge and

denying relief on his 28 U.S.C. § 2254 (2000) petition.         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. Dir., 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

October 18, 2007.        The notice of appeal was filed on April 17,

2008.*   Because Grate failed to file a timely notice of appeal or

to obtain an extension or reopening of the appeal period, we

dismiss the appeal.        We dispense with oral argument because the

facts    and    legal   contentions   are   adequately   presented   in   the




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

                                       2
materials   before   the   court   and   argument   would   not    aid   the

decisional process.

                                                                  DISMISSED




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