Paul D. BAKER, Petitioner-Appellant, v. COMMONWEALTH OF VIRGINIA, Respondent-Appellee, 140 F. App'x 476

PER CURIAM: Paul D. Baker seeks to appeal the district court’s order construing his Fed. R.Civ.P. 60(

b) motion as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2000) and dismissing it as successive. 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.

Director, Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960)). The district court’s order was entered on the docket on August 12, 2004. The notice of appeal was filed on December 9, 2004. Because Baker failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, we dismiss the appeal.

We deny Baker’s motion to appoint counsel and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED For the purpose of this appeal, we assume that the date appearing on the notice of appeal 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, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).