                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            APR 12 2016
                    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOHNNY TWITTY,                                  No. 14-35728

              Petitioner - Appellant,           D.C. No. 3:13-cv-05947-BJR

 v.
                                                MEMORANDUM*
STATE OF WASHINGTON,

              Respondent,

  And

PATRICK GLEBE,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Western District of Washington
             Barbara Jacobs Rothstein, Senior District Judge, Presiding

                             Submitted April 8, 2016**
                               Seattle, Washington

Before: HAWKINS, RAWLINSON, and CALLAHAN, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Twitty attempts to appeal the district court’s order denying his habeas corpus

petition under 28 U.S.C. § 2254. Because we conclude that he did not timely file a

notice of appeal, we lack jurisdiction over the appeal and dismiss.

      Twitty was convicted in Washington state court of attempted first-degree

murder and first-degree unlawful possession of a firearm. His federal petition alleged

ineffective assistance of counsel, a defective jury instruction, insufficiency of the

evidence and admission of prejudicial evidence. The district court adopted the

magistrate’s report and recommendation and entered judgment denying all claims on

July 18, 2014. Thirty-two days later, on August 19, 2014, Twitty, acting pro se,

signed, dated and deposited in the prison mail (mailing to both the district court and

this court) a document entitled, “Certificate of Appealability,” stating an intention to

appeal the district court’s order.1

      This court determines de novo whether a notice of appeal is timely. Ford v.

MCI Commc’ns Corp. Health & Welfare Plan, 399 F.3d 1076, 1079 (9th Cir. 2005),

overruled on other grounds in Cyr v. Reliance Std. Life Ins., 642 F.3d 1202, 1207 (9th

Cir. 2011). The relevant statute clearly requires a notice of appeal to be filed within

thirty days after the entry of judgment. 28 U.S.C. § 2107(a); see also Fed. R. App. P.



      1
       We construe this document as a Notice of Appeal. See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed.”).
                                           2
4(a)(1). Filing an appeal within this time period is mandatory and jurisdictional. See

Ray Haluch Gravel Co. v. Central Pension Fund, 134 S. Ct. 773, 779 (2014). If there

is not a timely appeal, the circuit court has no jurisdiction to review the district court

order. See Bowles v. Russell, 551 U.S. 205, 209-10 (2007); Browder v. Director,

Dep’t of Corrections of Illinois, 434 U.S. 257, 265 (1978).

      Pro se prison inmates are given a little flexibility with respect to these

requirements under the “prison mailbox rule.” See Houston v. Lack, 487 U.S. 266

(1988). In such cases, it does not matter the actual date the document is received and

filed with the court, so long as the inmate has deposited the notice “in the institution’s

internal mail system on or before the last day for filing.” Fed. R. App. P. 4(c)(1)

(codifying prison mailbox rule).

      Here, however, Twitty cannot avail himself of the mailbox rule because he did

not deposit his Certificate of Appealability in the prison mail system until thirty-two

days after entry of judgment, or one day late (because thirty days fell on a Sunday).

In his response to this court’s order, it clearly appears this was because he mistakenly

believed he could file an appeal within thirty days of his receipt of the judgment, as

opposed to what the statute requires – thirty days within district court’s entry of the

judgment. Twitty’s appeal is thus untimely, and we must dismiss for lack of

jurisdiction.

      DISMISSED.

                                            3
