                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-7264


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

PATRICK LAMAR HARRIS,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   C. Weston Houck, Senior District
Judge. (4:94-cr-00297-CWH-6; 4:07-cv-70075-CWH)


Submitted:    September 24, 2009            Decided:   October 8, 2009


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


Dismissed by unpublished per curiam opinion.


Patrick Lamar Harris, Appellant Pro Se. Marshall Prince, II,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Patrick Lamar Harris appealed from the denial of his

28 U.S.C.A. § 2255 (West Supp. 2009) motion and his motion for

reconsideration.                 The      order       denying       the      motion       for

reconsideration            was   entered       on    March    24,       2008,     rendering

Harris’s notice of appeal due by May 23.                          See Fed. R. App. P.

4(a)(1)(B) (according sixty days to appeal).                        Harris’s notice of

appeal was dated May 20, postmarked June 19, and filed June 24.

We previously remanded to the district court for a determination

of     the    date    Harris       gave      his    notice   of     appeal      to    prison

authorities.

               On remand, the district court incorrectly held that

Harris’s notice of appeal was due ten days after the district

court’s March 24 order.                   See Rule 11 of the Rules Governing

Section       2255   Proceedings         (stating     that   Fed.    R.    App.      P.   4(a)

governs time to appeal).                  As such, the court found that, even

accepting Harris’s assertion that he filed his notice of appeal

on   May     20,     his   appeal      was    untimely.       However,       because      the

documents submitted by Harris on remand conclusively demonstrate

that    his    appeal      was   untimely,         even   under   the     correct     appeal

period, we dismiss the appeal.

               Federal      Rule    of    Appellate       Procedure       4(c)(1)     states

that an incarcerated inmate’s notice of appeal is deemed filed

when deposited into the institution’s mail system.                           However, the

                                               2
Rule   further    notes    that    “[i]f     an    institution      has    a    system

designed   for    legal   mail,    the   inmate      must    use   the    system    to

receive the benefit of this rule.”

            In    accordance      with   Rule      4(a),    Harris’s      notice    of

appeal was due on May 23.           His notice of appeal was ostensibly

signed on May 20.          However, the notice was not filed until

June 24,   over    a    month   later.       The    documents      submitted       with

Harris’s response in the district court show that his prison has

a legal mail system, through which legal mail is logged, and

that Harris did not use the system.                Harris affirmatively stated

that he “deposited the ‘Notice of Appeal’ in the prison mail

box”   rather    than   “hand[ing    it]     to    the   mailroom    staff”     which

would have ensured that it was “logged in the legal mail box log

book.”     Thus, we conclude that Harris is not entitled to the

protections of the mailbox rule and that his notice of appeal

was, therefore, untimely filed on June 24.

            Given that this time period for appeal is “mandatory

and jurisdictional,” Browder v. Dir., Dep’t of Corr., 434 U.S.

257, 264 (1978), we dismiss the appeal for lack of jurisdiction.

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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