                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 04-6984



CHARLES R. SMITH,

                                               Petitioner - Appellant,


          versus


STATE OF SOUTH CAROLINA;        HENRY   MCMASTER,
Attorney General of the         State   of South
Carolina,

                                              Respondents - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Matthew J. Perry, Jr., Senior
District Judge. (CA-03-1623)


Submitted:   August 12, 2004                 Decided:   August 20, 2004


Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Charles R. Smith, Appellant Pro Se. Henry Dargan McMaster, Attorney
General, Donald John Zelenka, Chief Deputy Attorney General, John
William McIntosh, Assistant Attorney General, Samuel Creighton
Waters, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia,
South Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

               Charles R. Smith seeks to appeal the district court’s

order accepting the report and recommendation of the magistrate

judge, awarding summary judgment to Defendants, and dismissing his

petition for a writ of habeas corpus filed pursuant to 28 U.S.C.

§ 2254 (2000).          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

April 23, 2004.          The notice of appeal was executed on June 2,

2004.*   Because Smith 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. See Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266
(1988).

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materials   before   the   court   and     argument   would   not    aid   the

decisional process.



                                                                    DISMISSED




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