833 F. 2d 1004 - Christensen v. D Leeke

Herbert S. Christensen, Jr., a Nebraska inmate challenging South Carolina convictions, seeks to appeal the judgment of the district court dismissing his petition for habeas corpus relief brought pursuant to 28 U.S.C. Sec. 2254. The district court entered final judgment in this case on May 11, 1987. Christensen noted his appeal on July 9, 1987, fifty-nine days after entry of judgment and twenty-nine days later than the period prescribed by Fed.R.App.P. 4(a)(1).

Under Fed.R.App.P. 4(a)(1), an appeal must be noted within thirty days after entry of judgment. Under Fed.R.App.P. 4(a)(5), a district court, "upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration [of the appeal period]." Absent a request for extension of the appeal period, a notice of appeal filed in this second thirty-day period is untimely and ineffective to confer appellate jurisdiction. Shah v. Hutto, 722 F.2d 1167 (4th Cir.1983) (en banc), cert. denied, 466 U.S. 975 (1984). Christensen did not file a motion to extend the appeal period; therefore this Court lacks jurisdiction to hear his appeal.

Because the dispositive issues recently have been decided authoritatively, we deny a certificate of probable cause to appeal, dispense with oral argument and dismiss this case for lack of jurisdiction.