896 F. 2d 1366 - Dean v. State of West Virginia
896 F2d 1366 Dean v. State of West Virginia
896 F.2d 1366
Unpublished Disposition
Larry F. DEAN, Petitioner-Appellant,
v.
STATE OF WEST VIRGINIA; Circuit Court of Marion County,
Fairmont, West Virginia; Fred L. Fox, II,
Respondents-Appellees.
No. 89-6796.
United States Court of Appeals, Fourth Circuit.
Submitted: Oct. 27, 1989.
Decided: Feb. 13, 1990.
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Larry F. Dean, appellant pro se.
Patrick N. Wilson, County Attorney's Office, for appellees.
Before DONALD RUSSELL, WILKINSON and WILKINS, Circuit Judges.
PER CURIAM:
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Larry F. Dean noted this appeal outside the 30-day appeal period established by Fed.R.App.P. 4(a)(1), and failed to move for an extension of the appeal period within the additional 30-day period provided by Fed.R.App.P. 4(a)(5). The time periods established by Fed.R.App.P. 4 are "mandatory and jurisdictional." Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)). Appellant's failure to note a timely appeal or obtain an extension of the appeal period deprives this Court of jurisdiction to consider this case.* We therefore deny a certificate of probable cause and dismiss the appeal. We dispense with oral argument because the dispositive issues recently have been decided authoritatively.
DISMISSED.
Dean's original habeas petition and this petition for rehearing were denied without prejudice. Accordingly, Dean may properly raise his claim by filing a new habeas petition in the district court after exhausting his state remedies