                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-7036



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


JOHN ALBERT WILKERSON, JR.,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (CR-00-9; CA-02-161-1)


Submitted:   July 28, 2004                  Decided:   August 13, 2004


Before MICHAEL, MOTZ, and KING, Circuit Judges.


Dismissed by unpublished per curiam opinion.


John Albert Wilkerson, Jr., Appellant Pro Se.  Thomas Richard
Ascik, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           John Albert Wilkerson, Jr., moves for a certificate of

appealability.     We deny the motion and dismiss the appeal for lack

of jurisdiction because Wilkerson has not filed a timely notice of

appeal.    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 Wilkerson’s § 2255

motion was entered August 19, 2002.       Wilkerson’s next filing was a

letter dated April 7, 2004.1      Construing the letter as a notice of

appeal, it is clearly untimely.     In a May 7, 2004, order responding

to the April 7 letter, the district court instructed Wilkerson to

file in this court a motion for a certificate of appealability and

implicitly denied Wilkerson’s request in his April 7 letter to give

him   permission   to   appeal.    Wilkerson   adhered   to   the   court’s



      1
      For the purpose of this appeal, we assume the date appearing
in the letter 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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instruction and filed the petition in this court on May 31, 2004.

Construing this filing as a notice of appeal from the August 19,

2002, order, it is also untimely.

          Accordingly,   we   dismiss   the   appeal   for   lack   of

jurisdiction and deny as moot the petition for a certificate of

appealability.2



                                                             DISMISSED




     2
      Construing the petition for a certificate of appealability as
a notice of appeal from the May 7 order is also without merit. The
district court’s implicit denial of permission to file a notice of
appeal is without error. See Fed. R. App. P. 4(a)(5), (6).

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