                   Rehearing granted, April 7, 2004



                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 03-7877



DONALD EUGENE MEDLIN,

                                             Petitioner - Appellant,

          versus


JAY CLARK,

                                              Respondent - Appellee.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham.   Paul Trevor Sharp,
Magistrate Judge. (CA-02-393-1)


Submitted: February 12, 2004               Decided:   February 23, 2004


Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Bruce Tracy Cunningham, Jr., CUNNINGHAM, DEDMOND, PETERSEN & SMITH,
Southern Pines, North Carolina, for Appellant. Clarence Joe
DelForge, III, OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Donald Eugene Medlin seeks to appeal the magistrate

judge’s order dismissing his petition for 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. Dir., Dep’t of Corr., 434 U.S.

257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220,

229 (1960)).

               The magistrate judge’s order was entered on the docket on

October 16, 2003.         The notice of appeal was filed by Medlin’s

attorney on November 17, 2003.           Because Medlin failed to file a

timely notice of appeal or to obtain an extension or reopening of

the appeal period, we deny a certificate of appealability and

dismiss the appeal.        We dispense with oral argument because the

facts    and    legal   contentions   are     adequately   presented   in   the




     *
      This case was decided by magistrate judge upon consent of the
parties under 28 U.S.C. § 636(c)(1) (2000).

                                      - 2 -
materials   before   the   court   and     argument   would   not    aid   the

decisional process.



                                                                    DISMISSED




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