                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-6400



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


MARSHALL D. BROOKS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Henry E. Hudson, District
Judge. (3:02-cr-00454-HEH-1; 3:05-cv-00348-HEH)


Submitted:   June 9, 2008                 Decided:   June 27, 2008


Before MOTZ, TRAXLER, and KING, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Marshall D. Brooks, Appellant Pro Se. Roderick Charles Young,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Marshall D. Brooks seeks to appeal the district court’s

order denying relief on his 28 U.S.C. § 2255 (2000) motion.     We

dismiss the appeal for lack of jurisdiction because the notice of

appeal was not timely filed.

           When the United States or its officer or agency is a

party, the notice of appeal must be filed no more than sixty days

after the entry of the district court’s final judgment or order,

Fed. R. App. P. 4(a)(1)(B), 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 denying Brooks’ § 2255 motion

was entered July 11, 2006.   Brooks subsequently filed a Motion for

Certificate of Appealability in the district court on June 28,

2007.*   Even if this motion were determined to be the functional

equivalent of a notice of appeal, see Smith v. Barry, 502 U.S. 244,

248-49 (1992), we conclude that it would have been untimely filed.

Because Brooks failed to file a timely notice of appeal or timely


     *
      For the purpose of this appeal, we assume that the date
appearing on Brooks’ motion for a certificate of appealability 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 -
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 materials before

the court and argument would not aid the decisional process.


                                                        DISMISSED




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